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THE  LIBRARY 
OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 


A   TREATISE 


MEASUKE  OF  DAMAGES; 


OB,   AN 


INQUIRY   INTO   THE   PRINCIPLES 


GOVERN  THE  AMOUNT  OF  PECUNIARY  COMPENSATION 
AWARDED  BY  COURTS  OF  JUSTICE. 


THEODOEE    SEDGWICK, 

AUTHOR  OF  "a  TRKATISE  ON  STATUTORY  AND  CONSTITUTIONAL    LAWJ 


Cum  pro  eo  quod  interest  dubitationes  antiquae  in  infinitum  prodactae  sint,  melius  nobis  visum  est,  Iiigusmodi 
proljxitatem,  prout  possibile  est,  in  angustum  coarctare. 

Cod.  De  sent,  qua  pro  eo  quod  int.  prof.  lib.  vii.  tit.  xlvii. 


FIFTH   EDITION, 

BY 

ARTHUR  G.   SEDGWICK. 

COMPRISING   THE  FOURTH  EDITION 
By  henry  D.  SEDGWICK 


NEW  YORK: 
BAKER,  VOORHIS  AND   COMPANY,  PUBLISHERS, 

NO.  66   NASSAU  STREET. 
1869. 


Entered  according  to  the  Act  of  Congress,  in  the  year  1869,  by 

Ridley  Watts,  Executor  of  Theodoke  Sedgwick, 

in  the  Clerk's  Office  of  the  District  Court  of  the  Southern  District  of  New  York. 


T 


RIVERSIDE,    CAMBRIDGE: 
PRINTED    BY  H.   O.   HOUGHTON  AND   COMPANY. 


u. 


DANIEL   LORD,   ESQ. 

Dear  Sir  : 

If  you  find  no  fault,  I  am  very  sure  that  I  shall  not  be  elsewhere  cen- 
sured for  placing  your  name  (although  without  any  previous  permission), 
upon  the  dedication  page  of  this  work. 

Your  opinion  of  the  importance  of  the  subject,  is  one  of  the  circum- 
stances that  have  most  strongly  urged  me  to  proceed  with  it.  But  I 
have  other  reasons  for  requesting  you  to  accept  this  volume. 

You  show  us  all,  by  a  teaching  far  better  than  barren  precept,  how 
much  true  dignity  and  usefulness,  as  well,  if  we  may  be  allowed  to 
judge,  as  real  happiness,  attend  a  life  assiduously,  intelligently,  and, 
above  all,  honorably  devoted  to  that  profession  of  which  we  are  the 
votaries. 

I  am,  dear  Sir, 

With  sincere  regard  and  respect, 
Your  obedient  servant, 

THEODORE   SEDGWICK. 

New  York,  January,  1847. 


73588S 


PREFACE 

TO 

SECOND  EDITION. 


In  preparing  the  Second  Edition  of  this  work  for  the  press,  I  have 
done  all  in  my  power  to  show  my  sense  of  the  favorable  manner  in 
which  it  has  been  received,  and  to  increase  its  utility.  I  have  examined 
the  numerous  volumes  of  Reports  which  have  appeared  both  in  England 
and  this  country,  and  have  availed  myself,  as  far  as  possible,  of  the  in- 
creased attention  which  has  been  latterly  paid  to  the  subject.  This  has 
led  not  only  to  a  great  increase  of  matter,  but  to  changes  so  considerable 
in  the  arrangement  of  the  work,  that  I  have  found  it  impossible  to  pre- 
serve the  original  paging.     The  two  last  chapters  are  entirely  new. 

The  principal  difficulty  which  I  encountered  in  preparing  the  first  edi- 
tion —  the  difficulty  of  adapting  any  scientific  arrangement  of  the  rules 
of  compensation  to  the  technical  forms  of  action  of  the  common  law  — 
has  been  somewhat  increased  by  the  great  changes  that  have  been  intro- 
duced into  legal  proceedings  within  the  last  few  years.  New  York,  and 
several  of  the  sister  States,  have  adopted  a  system  of  pleading  which 
amounts  to  a  total  subversion  of  the  common-law  procedure ;  and  Massa- 
chusetts has  made  very  serious  innovations  on  it.  We  are  evidently  in 
the  midst  of  a  revolution  which,  in  our  own  time,  will  not  only  efface 
most  of  the  distinctions  between  law  and  equity,  but  will  completely 
sweep  away  the  common  law  so  far  as  its  forms  of  proceeding  are  con- 
cerned;  and  in  so  doing,  work  a  change  in  the  administration  of  justice, 
far  more  complete  than  was  ever  before  effected  in  so  short  a  period. 
Our  example  and  influence  are  already  making  themselves  felt  in  Eng- 
land ;  and  the  alterations  there,  though  perhaps  they  will  be  more 
cautiously  made,  bid  fair  to  be  not  much  less  sweeping. 

Convinced,  as  I  have  long  been,  that  these  changes  —  although  at- 
tended by  the  evils  which  always  wait  upon  great  and  sudden  modifica- 
tions of  existing  arrangements,  evils  aggravated  in  this  case  in  our 
country  by  our  tendency  to  act  rather  with  energy  and  vigor  than  with 
caution  and  deliberation  —  still,  that  these  changes  will  finally  establish 
b 


VI  PREFACE   TO    SECOND    EDITION. 

our  jurisprudence  on  a  basis  more   intelligible,  more   harmonious,  more 
beneficial,  I  cannot  in  any  sense  regret  their  introduction. 

For  the  time  being,  however,  in  regard  to  the  order  and  arrangement 
of  this  work,  I  have  felt  the  full  inconvenience  resulting  from  the  present 
chaotic  state  of  our  procedure.  I  have  endeavored  to  avoid  it  as  far  as 
possible  by  keeping  steadily  in  view  what  is  manifestly  the  inevitable  re- 
sult of  the  experiments  now  going  on,  viz. :  the  final  and  total  abrogation 
of  the  forms  of  common-law  pleading  both  in  England  and  America. 
When  that  end  is  at  length  attained,  and  when  the  application  for  redress 
shall  be  made  to  depend  solely  on  the  right,  then,  and  not  till  then,  it  will 
be  easy  to  classify  and  aiTange  the  rules  governing  the  measure  of  relief 
in  a  manner  that  shall  be  at  once  legal  and  logical ;  that  shall  satisfy  the 
technical  demands  of  the  practitioner,  and  at  the  same  time  gratify  that 
love  of  reason  and  justice  which  animates  the  mind  of  him  who  desires 
to  find  somethino;  in  the  law  besides  a  mere  collection  of  abstract  and 
arbitrary  rules. 

New  York,  July,  1852. 


PREFACE 

TO 

THIRD  EDITION. 


In  preparing  a  Third  Edition  of  this  work  for  the  press,  I  had  hoped 
to  be  able  to  give  more  of  my  time  and  personal  attention  to  the  work 
than,  owing  to  various  reasons,  I  have  found  it  possible  to  do. 

But  perhaps,  under  the  circumstances,  there  is  no  particular  cause  for 
regret.  The  diligence  and  accuracy  of  Messrs.  Abbott  Brothers,  to 
whom  the  reader  is  indebted  for  the  notes  to  this  edition,  have  supplied 
all  the  recent  decisions ;  and  it  is  yet  hardly  time  to  remodel  the  work, 
as  I  hope  some  day  to  do,  with  reference  to  the  great  changes  that  have 
taken  place  in  our  jurisprudence  since  the  first  publication  of  the  treatise, 
in  1847. 

Those  changes  are  in  active  operation,  but  their  ultimate  results  cannot 
yet  be  with  safety  predicted.  If  another  edition  of  this  work  shall  be 
required,  I  hope  then  to  be  able  to  re-fashion  it  so  as  to  bring  it  into 
conformity  with  the  great  alterations  that  have  taken  place  in  the  system 
of  pleading,  and,  in  fact,  in  the  whole  administration  of  justice,  both  in 
England  and  in  this  country. 

I  should  not  do  justice  to  myself,  if  I  omitted  to  take  some  notice  of 
the  kind  and  cordial  way  in  which  this  work  has  been  received  on  both 
sides  of  the  Atlantic.  It  is  in  my  power  in  other  ways  to  make  my 
acknowledgments  to  the  eminent  authorities  of  my  own  country,  who 
have  spoken  favorably  of  this  treatise  ;  but  to  the  voices  from  afar,  I  can 
hardly  make  any  response,  except  by  availing  myself  of  an  opportunity 
like  this.  The  courts  of  Westminster  Hall  have  treated  this  work  in  a 
manner  that  cannot  but  be  very  gratifying  to  an  author  ;  and  I  take 
pleasure  in  thus  sending  my  thanks  across  the  water,  for  the  friendly 
manner  in  which  it  has  been  spoken  of  by  Mr.  John  George  PJiillimore, 
in  his  "  Essay  on  the  Principles  and  Maxims  of  Jurisprudence  ;  "  by  Mr. 
Edward  Powell,  in  his  very  able  "  Treatise  on  the  Practice  of  the  Law 
of  Evidence  ;  "  by  Mr.  Herbert  Broom,  in  his  "  Commentaries  on  the 
Common  Law  ;  "  and  by  Mr.  J.  D.  Mayne,  in  his  "  Essay  on  Damages." 

New  Yoek,  June,  1858. 


PREFACE 

TO 

FOURTH  EDITION. 


In  the  present  edition  of  this  work,  the  topics,  without  being  arbi- 
trarily distributed  into  sections,  have  been  classed  under  descriptive 
headings,  and  many  of  the  chapters  have  been  to  some  extent  rearranged 
by  bringing  together  the  different  parts  of  the  same  subject.  The  errors 
of  the  press  in  the  third  edition  have  been  corrected  wherever  discov- 
ered, and  a  few  slight  but  unavoidable  alterations  made  in  substance. 
Beyond  these  essentials,  the  text  has  been  conscientiously  left  as  it  was. 
The  division  of  the  chapters  remains  as  before,  and  in  the  changes  made, 
the  marginal  paging  has  been  preserved  as  far  as  possible. 

The  author's  notes  are  distinguished  by  being  placed  in  a  double 
column,  and  are  separated  by  a  line  from  the  others.  Those  to  the 
third  edition  by  Messrs.  Abbott  Brothers,  have  been  substantially  in- 
corporated with  the  new  matter.  Although  freely  altered  and  con- 
densed, no  material  part  of  them  unaffected  by  subsequent  decisions, 
has  been  omitted.  The  new  notes  will  be  found  to  contain  large,  and 
it  is  hoped  important,  additions,  including  the  discussion  of  several 
subjects  which  have  been  developed  in  the  ten  years  since  the  last 
edition,  and  were  not  before  alluded  to,  or  were  but  barely  mentioned. 
Where  other  pages  of  the  book  are  referred  to  in  the  notes,  the  mar- 
ginal page  is  intended,  unless  the  head  page  is  expressly  cited. 

In  the  table  of  cases,  the  number  cited  in  the  last  edition  is  nearly 
doubled,  and  the  former  citations  have  been  verified  and  corrected. 
The  index  is  enlarged  and  elaborated.  Great  pains  have  been  taken  to 
approach  complete  accuracy,  that  vanishing  goal  of  the  legal  writer,  the 
attainment  of  which,  in  any  absolute  sense,  is  quite  impossible.  How 
far  short  of  it  the  editor  has  fallen,  he  is  painfully  aware. 

Although  he  has  not  felt  himself  justified  in  attempting  to  change  the 
plan  of  the  book,  so  as  to  consider  the  measure  of  damages  indepen- 
dently of  the  forms  of  action  which  are  still  so  widely  retained,  it  is 
hoped  that  its  usefulness  will  not  be  found  materially  less  where  these 


X  PREFACE   TO    FOURTH    EDITION. 

forms  are  abolished  than  where  they  still  exist.  The  essential  princi- 
ples controlling  the  subject  must  remain  the  same,  although  relieved 
from  the  embarrassment  which  is  sometimes  caused  by  special  modes  of 
procedure. 

A  few  late  material  decisions  and  typographical  errors  are  pointed  out 
in  a  note  at  the  end ;  and  such  inaccuracies  as  occur  in  the  citations  of 
authorities  are  corrected  in  the  table  of  cases. 

The  editor,  in  offering  the  humble  fruits  of  his  labor,  cannot  forbear 
saying  that  the  examination  of  several  thousand  cases  on  the  subject  of 
the  measure  of  damages,  chiefly  published  since  the  last  edition,  has  con- 
firmed the  conviction  which  he  before  entertained,  in  common  as  he 
believes  with  the  profession  at  large,  of  the  great  value  of  the  book,  and 
of  the  essential  correctness  of  its  statements  of  the  law. 

He  has  to  thank  Mr.  Arthur  George  Sedgwick,  of  the  Boston  Bar, 
a  son  of  the  author,  for  a  very  clear  digest  of  late  decisions  in  Massa- 
chusetts. 

New  York,  May,  1 868. 


PREFACE 

TO 

FIFTH  EDITION. 


The  last  edition  of  this  work  was  published  about  a  year  since,  and 
the  time  which  has  elapsed  since  then  is  so  short,  that  this  edition  is  very 
much  the  same  as  the  fourth.  In  preparing  it  for  the  press,  the  editor 
has  taken  the  work  of  his  predecessor  as  a  starting-point,  and  confined 
his  labors  to  the  simple  task  of  bringing  that  work  down  to  the  latest 
dates.  Whatever  merit,  therefore,  this  edition  may  have,  belongs  to  the 
previous  editor,  while  whatever  errors  it  may  contain,  should  be  laid  to 
the  charge  of  his  successor. 

The  natural  increase  in  the  volume  of  the  work  from  the  additions  in 
the  present  edition  does  not  appear  in  the  number  of  pages,  because  of  a 
change  in  the  size  of  the  type. 

The  reader's  attention  is  specially  directed  to  the  final  note  of  correc- 
tions and  additions. 

Boston,  July,  1869. 


CONTENTS. 


PAGE 

INTRODUCTION.  1 

CHAPTER  I. 

GENERAL    VIEW   OF   THE    SUBJECT. 

Distinction  between  Common  Law  and  Equity  as  to  the  Relief  given.  — 
Sir  Hugh  Cairn's  Act.  —  Origin  of  Damages.  —  Different  Principles 
on  which  Different  Systems  of  Jurisprudence  act  in  awarding  Dam- 
ages.—  That  of  the  English  and  American  Systems  is  Compensa- 
tion. —  Nature  and  Extent  of  this  Compensation  generally. —  Diffi- 
culties arising  from  the  Forms  of  Action.        .         .  .  .7 

CHAPTER  II. 

NOMINAL    DAMAGES.  .  .  *  .43 

CHAPTER  III. 

REMOTE   AND    CONSEQUENTIAL    DAMAGES. 

No  Compensation  allowed  in  Damages,  but  for  the  Direct  and  Imme- 
diate Consequences  of  the  Act  complained  of  —  French  Law  on 
this  Subject.  —  Scotch  Law.  —  The  Common  Law.  —  What  are  con- 
sidered Direct  and  Immediate  Consequences.  —  Loss  of  Profits.  — 
As  between  Principal  and  Surety.  —  Statutes.  —  Counsel  Fees.  — 
Damages  arising  after  Suit  brought.  —  Prospective  Damages.  — 
Liability  of  Grantees  of  Franchises  for  Consequential  Damages.     .         56 

CHAPTER  IV.  ' 

MEASURE  OF  DAMAGES  IN  ACTIONS  FOR  POSSESSION  OF  REAL  PROPERTY. 

Rule  of  Damages  in  Actions  brought  to  Recover  the  Possession  of  Real 
Estate.  —  In  Real  Actions  generally.  —  Ejectment.  —  Trespass  for 
Mesne  Profits.  —  Equitable  Defenses  allowed.  —  Dower.        .        .       126 


XIV  CONTENTS. 

CHAPTER  V. 

PAGE 

MEASURE     OF    DAMAGES     FOR     WRONGFUL     INTERFERENCE     WITH     REAL 

PROPERTY. 

The  Eule  of  Damages  in  Actions  for  Wrongful  Interference  with  the 
Occupation  or  Enjoyment  of  Real  Estate.  —  Trespass  to  Real 
Property.  —  Mills.  —  Flooding  Lands.  —  Actions  by  Reversioners. 

—  Case.  —  Nuisance.  —  Waste.  .  .  .  .  .142 

CHAPTER  VI. 

RULE  OF  DAMAGES  IN  ACTIONS  BROUGHT  FOR  THE  BREACH  OF  COVENANTS 
OR  AGREEMENTS  GROWING  OUT  OP  THE  CONVEYANCE  OR  OCCUPATION 
OF  REAL  ESTATE. 

The  Ancient  Warranty.  —  Modern  Covenants.  —  The  Stipulatio  Duplex 
and  Edictum  Edilium  of  the  Roman  Law.  —  Rules  of  the  Modern 
Civil  Law,  in  Cases  of  Eviction.  —  Of  the  French  Code.  —  Measure 
of  Damages  according  to  the  Common  Law,  in  Cases  of  Eviction. 

—  On  the  Covenants  lor  Quiet  Enjoyment,  and  of  Warranty.  —  Im- 
provements. —  Leases.  —  Rule  in  Different  States.  —  Partial  Evic- 
tion. —  Measure  of  Damages  on  the  Covenant  of  Seisin.  —  On  the 
Covenant  against  Incumbrances.  —  On  Covenants  to  Convey  Lands. 

—  Landlord  and  Tenant.     Covenants  to  Repair  and  Rebuild.         .       161 

CHAPTER  VIL 

THE   MEASURE    OF   DAMAGES    IN    ACTIONS    ON   CONTRACTS. 

General  Rules  of  Compensation  in  Personal  Actions  founded  on  Breach 
of  Contract,  without  Penalty  or  Liquidated  Damages.  —  Damages 
limited  to  the  Results  of  the  Breach  of  Contract.  —  Motives  of  the 
Defendant  not  inquired  into.  —  Exceptions.  —  The  Contract  con- 
trols the  Measure  of  Damages.  —  Exceptions.  —  Tender,  how  far 
equivalent  to  Performance  in  reference  to  Damages.  —  Compensa- 
tion in  Cases  of  Partial  or  Imperfect  Performance  of  Contract.  — 
Rule  of  Damages  on  Continuing  Agreements.  —  Agreements  to  do 
various  Acts.  —  Quantum  meruit.  —  Forms  of  Action  employed.  — 
Account  obsolete.     .  .  .  .  .  .  .216 

CHAPTER  VIII. 

THE    MEASURE    OF   DAMAGES   IN   ACTIONS    UPON   PROMISSORY    NOTES    AND 

BILLS  OF   EXCHANGE. 

On  Promissory  Notes  the  Legal  Rate  of  Interest  fixes  the  Measure  of 
Damages.  —  Questions.  —  When  the  Currency  is  altered.  —  When 


CONTENTS.  XV 

PAGE 

the  Contract  is  made  in  one  Country  and  the  Suit  is  brought  in 
Another.  —  When  the  Amount  of  Recovery  depends  on  the  Consid- 
eration paid  or  received.  —  Rule  of  Damages  on  Bills  of  Exchange. 

—  Re-exchange  fixed  in  the  United  States  generally  by  Statute.  257 

CHAPTER  IX. 

THE  MEASURE  OF  DAMAGES  IN   ACTIONS  UPON  POLICIES  OF  INSURANCE. 

Marine  Insurance.  —  Partial  Loss.  —  Total  Loss.  —  General  Average. 

—  The  Principle  of  Arbitrary  Remuneration.  —  Fire  Insurance.  — 

Life  Insurance.         .......       278 

CHAPTER  X. 

MEASURE  OF  DAMAGES  UPON  THE  BREACH  OF  CONTRACTS  FOR  THE  SALE 

OF  PERSONAL  PROPERTY. 

Roman  Law.  —  General  Rule  as  against  Vendor  is,  the  Difference  be- 
tween the  Contract  Price  and  the  Value  of  the  Article  on  the  Day 
fixed  for  Delivery.  —  How  far  this  Rule  is  modified  by  Payment  of 
the  Price  in  Advance.  —  Examination  of  the  Decisions.  —  As 
against  Vendee,  the  whole  Price  may  be  recovered,  although  the 
Article  be  not  delivered.  —  Fraud.  —  Rules  of  the  Modern  Civil 
Law.  —  Molinaeus.  —  Pothier.  —  Measure  of  Damages  against 
Vendor  upon  Breach  of  "Warranty,  is  the  Difference  between  the 
Value  of  the  Article  as  warranted,  and  its  Value  as  delivered.         .       289 

CHAPTER  XL 

THE  MEASURE  OF  DAMAGES  IN   ACTIONS    GROWING   OUT  OF  THE  CONTRACT 
OF  PRINCIPAL  AND  SURETY. 

Various  Contracts  of  Suretyship.  —  Rights  resulting  from  Implied  Prom- 
ise. —  Express  Promise  to  do  a  Particular  Act.  —  Express  Promise 
to  indemnify  and  save  harmless.  —  As  a  General  Rule,  the  Surety 
cannot  make  any  Claim  against  his  Principal  until  he  has  actually 
paid  the  Debt.  —  Exception  where  the  Party  contracts  to  do  a  Par- 
ticular Thing.  —  The  Measure  of  Damages  as  affected  by  the  Mode 
of  Payment.  —  When  made  in  Land  or  Property  other  than  Money. 

—  When  in  Securities.  —  What  Expenses  or  Costs  the  Surety  can 
recover  against  the  Principal.  —  Measure  of  Damages  as  between 
Surety  and  Co-surety.  —  As  between  Lessee  and  Sub-lessee.  .       340 


XVI  CONTENTS. 

CHAPTER  XII. 

RULE  OF  DAMAGES  AS  BETWEEN  PRINCIPAL  AND  AGENT. 

PAGE 

Liability  of  Agents  for  Nominal  Damages.  —  The  Measure  of  Remunera- 
tion is  a  Question  of  Law,  whether  the  Common  Law  Forms  of 
Assumpsit  or  Case  be  employed.  —  The  Agent  is  charged  with  the 
Amount  of  the  Loss,  if  he  has  been  guilty  of  Negligence,  whether 
the  Loss  be  the  Direct  Consequence  of  his  Neglect  or  not.  —  Cases 
examined.  —  The  Agent  may  show  that  no  Loss  has  resulted.  — 
Liability  of  Principal  to  Agent.  —  Sub-agents.        .  .  .       372 

CHAPTER  Xin. 

THE  MEASURE  OF  DAMAGES  IN  REGARD  TO  COMMON  CARRIERS,  UPON  BILLS 
OF  LADING,  AND  ON  CONTRACTS  OF  AFFREIGHTMENT. 

The  Value  of  the  Article  at  the  Place  of  Destination  fixes  the  Measure 
of  Damages.  —  Cases  examined.  —  Mode  of  arriving  at  the  Value. 

—  Rule,  when  Suit  is  brought  by  Carrier  on  Breach  of  Agreement 

to  furnish  Freight.  ......       394 

CHAPTER  XIV. 

OF   CERTAIN    SPECIAL  CONTRACTS,  AND  OF  THE  COMMON-LAW   ACTION    OF 

COVENANT. 

Cases  of  Contracts  not  considered  in  the  Previous  Chapters.  —  Damages 
on  Agreements  for  Forbearance.  —  Contractors  on  Public  Works. 

—  Misappropriation  of  Pledges.  —  Cases  examined.  —  Forfeiture 
of  Stock  by  Corporation.  —  Refusal  by  Corporation  to  permit  Trans- 
fer of  Stock.  —  Damages  in  Suits  by  Assignees  of  Bankrupts.  — 
Breach  of  Promise  of  Marriage.  —  Action  of  Covenant.  —  Charter 
Parties.  —  Assignment  of  Judgments.  —  Leases.      .  .  .       415 

CHAPTER  XV. 

OF  INTEREST  WITH    REFERENCE  TO  DAMAGES. 

Interest  first  given  in  England  by  Statute.  —  When  allowed  as  Matter  of 
Law.  —  When  by  the  Jury  in  their  Discretion.  —  Allowed  where  a 
Principal  Sum  is  to  be  paid  at  a  Fixed  Time.  —  Where  an  Agree- 
ment can  be  inferred.  —  Not  allowed  when  the  Demand  is  unliqui- 
dated. —  Conflict  between  English  and  American  Decisions.  — 
Money  improperly  detained.  —  Cash  Advances.  —  Discretion  of  the 
Jury.  —  Special  Cases.  —  Compound  Interest.  —  Cash  Advances.  — 
In  Trover  and   Trespass.  —  Interest  on  Error.  —  On  Judgment. 

—  When  Principal  has  been  paid.  ....       428 


CONTENTS.  XVU 

CHAPTER  XVI. 

OF  PENALTIES  ;    LIQUIDATED  DAMAGES  ;   AND  THE  COMMON-LAW  ACTION 

OF   DEBT. 

FAOI 

Debt  and  Covenant. —  Debt  on  Bond.  —  Amount  of  Recovery  within 
the  Penalty.  —  Assignment  of  Breaches.  —  Liquidated  Damages. 

—  Ne-Exeat    Bonds.  —  Bonds    to    resign    Livings.  —  Recovery 
beyond  the  Penalty.  ......       447 

CHAPTER  XVIL 

SET-OFF   AND    RECOUPMENT   OF   DAMAGES. 

No  Set-oflf  at  Common  Law.  —  Introduced  by  the  Courts  of  Equity.  — 
Statutes  on  the  Subject.  —  Original  Meaning  of  Recoupment.  — 
Cases  in  England.  —  Where  Suit  brought  on  the  Original  Con- 
tract ;  or  on  a  Bill  or  Note  given  under  it.  —  Where  Fraud  set 
up.  —  Necessity  of  Notice.  —  American  Signification  of  the  Term. 

—  Cases  in  this  Country.  —  Payment  after  Suit  brought.         .         .       487 

CHAPTER  XVin. 

THE   RULE    OF   DAMAGES    IN   ACTIONS    FOR   TORTS    GENERALLY. 

Forms  of  Action  prescribed  for  Wrongs.  —  Trover.  —  Case.  —  Tres- 
pass. —  Replevin.  —  Unless  Aggravation  is  proved,  the  Measure 
of  Damages  in  Actions  of  Tort  is  Matter  of  Law.  —  Where  Aggra- 
vation is  shown,  the  Jury  have  a  Discretion  to  give  Exemplary  or 
Vindictive  Damages  beyond  Compensation  for  Actual  Loss.  —  All 
the  attendant  Circumstances  may  be  proved.  —  Rule  where  both 
Plaintiff  and  Defendant  are  in  fault.  —  In  Collision.  —  In  Cases  of 
Felony. 515 

CHAPTER  XIX, 

THE  RULE  OP  DAMAGES  IN  ACTIONS  BROUGHT  FOR  THE  MISAPPROPRIA- 
TION OR  CONVERSION  OP  PERSONAL  PROPERTY.  —  THE  COMMON 
LAW   ACTION    OP   TROVER. 

The  General  Rule  is  the  Value  of  the  Property  Converted.  —  Special 
Damages,  whether  Recoverable.  —  Value,  whether  estimated  at  the 
time  of  Conversion,  or  at  Time  of  Trial.  —  Where  Plaintiff  claims  a 
Special  Property,  or  by  Virtue  of  a  Lien.  —  Where  the  Defendant 
has  bestowed  Labor  on  the  Property.  —  In  regard  to  Choses  in 
Action.  —  Interest.  —  Mitigation  of  Damages 541 


XVlll  CONTENTS. 

CHAPTER  XX. 

THE  RULE  OF  DAMAGES  IN  ACTIONS  BUOUGIIT  FOU  THE  RECOVERY  OF 
SPECIFIC  PERSONAL  PROPERTY  ;  THE  COMMON-LAW  ACTIONS  OF  DET- 
INUE   AND    REPLEVIN. 

PAGE 

Detinue.  —  Nature  of  the  Proceeding  of  Replevin.  —  In  this  Action.  — 
Damages  can  be  recovered  by  both  Parties.  —  Where  the  Defend- 
ant succeeds,  he  is  entitled  to  Interest  upon  the  Value  of  the  Prop- 
erty during  its  Detention.  —  How  the  Value  is  to  be  estimated.  — 
Damages  recoverable  by  the  Plaintiff.  576 

CHAPTER  XXI. 

THE    MEASURE    OF    DAMAGES    IN    ACTIONS    AGAINST    SHERIFFS    AND    OTHER 
PUBLIC    OFFICERS,    AND    THEIR    SURETIES. 

In  Actions  of  Case  or  Trespass,  against  Public  Officers,  the  Rule  of 
Damages  is  usually  a  Question  of  Law.  —  The  General  Rule  is  the 
Injury  actually  sustained  by  the  Plaintiff.  —  On  whom  does  the 
Proof  of  Damage  rest  ?  —  Cases  examined.  —  In  America,  the 
Debt  due  the  Plaintiff  is  prima  facie  the  Measure  of  Damages.  — 
If  Aggravation  is  shown  the  Jury  may  give  Exemplary  Damages. 
—  Mitigation.  —  Suits     aorainst    Collectors    of    Customs.  —  Suits 

to  o 

against  Sureties  of  Public  Officers. 585 

CHAPTER  XXII. 

THE    MEASURE    OF     DAMAGES    IN    CASES    OF    TRESPASS    TO    PERSON     OR    TO 

PROPERTY. 

In  every  Case  of  Trespass,  Damages  are  recoverable  whether  the  Act 
was  Intentional  or  Accidental.  —  But  if  no  Aggravation  is  shown, 
the  Rule  of  Damages  is  generally  a  Question  of  Law.  —  Case  or 
Trespass  for  Injuries  to  Property.  —  Decisions  examined.  —  Miti- 
gation. —  Case  or  Trespass  for  Injuries  to  Person.  —  Libel  and 
Slander.  —  Slander  of  Title.  —  Seduction.  —  Criminal  Conversa- 
tion. —  Breach  of  Promise.  —  Enticing  Servants.  —  Malicious  Pros- 
ecution. —  Decisions  examined.  —  Mitigation.  —  Case  or  Trespass 
where  Fraud  is  averred.  —  Fraud  in  the  sale  of  Lands.  —  Mitiga- 
tion and  Recoupment. —  General  Principles.  .         .         .         .612 

CHAPTER  XXIIL 

THE    RULE    OF    DAMAGES    UNDER    STATUTES. 

General  Principle  upon  which  Damages  are  granted  by  Statute.  — 
Damages  for  taking  Private  Property  for  Public  Use.  —  In  Eng- 
land. —  In  this  Country.  —  When  and  how  Compensation  made.  — 
Damages  in  Actions  against  Towns.  —  Statutes  for  Attendance  of 
Witnesses.  —  Roads   and   Bridges.  —  Damages  for   Injuries  done 


CONTENTS.  XIX 

PAGE 

by  Animals.  —  Statutes  imposing  Penalties.  —  Damages  for  Deten- 
tion. —  Double  and  Treble  Damages.  —  Interest.  —  Flowing  Lands. 
—  Claims  against  Officials. —  Special  Cases.  —  Patent  Cases.         .       661 

CHAPTER  XXIV. 

OF    DAMAGES    WITH   REFERENCE    TO   PLEADING   AND    PRACTICE. 

Damages,  General  and  Special.  —  Special  Damages  to  be  averred  in 
the  Declaration.  —  Misjoinder  of  Counts  and  Assessment  of  entire 
Damages.  —  Jurisdiction  of  the  Courts  of  the  United  States  with 
Reference  to  Damages.  —  Statute  of  Limitations.  —  Accord  and 
Satisfaction.  —  Tender.  —  Right  to  begin.  —  Bad  Counts.  —  Ver- 
dict. —  Award  of  Arbitrators.  —  Damages  with  regard  to  Costs.     .       676 

CHAPTER  XXV. 

OF   DAMAGES    WITH   REGARD    TO    EVIDENCE. 

As  a  General  Rule,  independently  of  Recent  Legislation,  the  Plaintiff  is 
not  allowed  to  testify.  —  Exceptions  in  which  he  is  admitted  to  give 
Evidence.  —  Abrogation  of  the  Common  Law  Rule.  —  The  Wit- 
ness is  to  testify  only  as  to  Facts,  and  not  as  to  Opinions.  —  Ex^. 
ception  in  Case  of  Experts.  —  In  Case  of  Value.  —  Doctrine  of 
Presumptions.  —  Sub-contracts.  —  Frequent  Necessity  of  being 
content  with  Imperfect  and  Unsatisfactory  Proof.  .         .         .       691 

CHAPTER  XXVI. 

POWER    OF   THE    COURT    OVER   THE    SUBJECT    OF   DAMAGES. 

Respective  Powers  of  Court  and  Jury  over  the  Subject  of  Damages.  — 
General  Division  of  their  Functions.  —  The  Roman  System  in  this 
Respect.  —  Curious  Analogies  between  it  and  the  English  System. 
—  General  Rule  with  us  is,  that  the  Court  decides  Questions  of 
Law,  and  the  Jury  Questions  of  Fact.  —  Exceptions.  —  Verdicts 
against  the  Weight  of  Testimony.  —  Setting  aside  Verdicts  on  ac- 
count of  Excessiveness  of  Damages.  —  Power  of  the  Court  exer- 
cised with  Hesitation  and  Reluctance.  —  Small  Damages.  —  Modes 
of  Computation  allowed  the  Jury.  —  Measure  of  Damages  a  Ques- 
tion of  Law. •       700 

Conclusion, *        •      713 

Note  of  Corrections  and  Additions,  717. 

Index, 719 


TABLE   OF  CASES. 


A. 


A.  &  S.  Railroad  Co.  v.  Bau<?h  (14  111. 

211)  664 

V.    Carpentei-    (14 

111.  190)  664 

Abbott  V.  Gatch  (13  Md.  314)  80,  499 

V.  Wilmot  (22  Verm.  437)  429 

Aberdeen  v.  Blackmar  (6  Hill,  324)  350 

Abshire  v.  Cliiie  (3  Ind.  11.5)  628 

Academy  of  Music  v.  Hackett  (2  Hilt. 

217)  89 

Accessory  Transit  Co.  of  Nicaragua   v. 

McCerren  (13  La.  Ann.  214)  453 

Acheson  v.  Miller  (18  Ohio,  1)  639 

Ackerman  v.  Emott  (4  Barb.  626)  440 

V.  Elirensperger  (16   Mees.  & 

W.  99)  276 

Ackley  v.  Chester  (5  Day,  221)  611 

Acton  V.  Pierce  (2  Vern.  480)  449 

Adair  v.  Boiijle  (20  Iowa,  238)  208 

Adams  v.  Barry  (10  Gray,  361)  677 

V.  Blodgett  (47  N.  H.  219)  718 

V.  Cordis  (8  Pick.  260)  109,  265 

V.  Hall  (2  Vt.  9)  670 

i>.  Inhabitants  of  Carlisle  (21  Pick. 

146)  535 

V.  McMillan  (16  Ala.  [0.  S.]  73)     393 
V.  The  Midland  R.  R.  Co.  (31  L. 

J.  R.  [N.  S.]  Exch.  35)   706,  707 

V.  Turrentine  (8  Ired.  147)  600 

V.  The  Ocean  Queen  536 

V.  Woonsocket  Co.  (11  Met.  327)     254 

Adams  Express  Co.  v.  Egbert  (36  Penn. 

360)  80,  85,  252 

Adamson  v.  Adamson  (4  Engh.  26)  424 

Addams  v.  Tutton  (39  Penn.  447)        100,  220 
Adderly  v.  Dixon  (1  Sim.  &  S.  607)  251 

Addison  v.  Overend  (6  T.  R.  766)  570 

^tna  Fire  Ins.  Co.  v.  Tyler  (16  Wend. 

385)  253 

Agnew  V.  Johnson  (22  Penn.  471)  677 

Agra    and    Elizabeth    Jenkins,    The    (4 

Moore  P.  C.  [N.  S.]  435)  537 

Aikin  v.  Bloodgood  (12  Ala.  [N.  S.]  221)  243 
Ainslie  v.  Wilson  (7  Cow.  662)  354,  360 

Ainsworth  v.  Partillo  (13  Ala.   [N.   S.] 

460)  380 

Albany    Dutch    Church    v.  Vedder   (14 

Wend.  165)  686 

Albany  N.  R.  R.  Co.  v.  Lansing  (16  Barb. 

68)  664 

Alcorn  v.  Hooker  (7  Blackf.  58)  627 

Alden  v.  Blague  (Cro.  Jac.  99)  684 

b 


PAGE 

Alden  v.  Dewey  (1  Story,  336)  674 

Alder  v.  Keighley  (15  Mees.  &  W.)    220,  421, 

545 
Aldrich  v.  Cheshire  R.  R.  Co.  (1   Post. 

359)  663 

V.  Dunham  (16  111.  403)  432 

V.  Palmer  (24  Cal.  513)  649 

Alexander  v.  Helber  (35  Mo.  334)  609 

V.  Herr  (11  Penn.  537)        134,  138 

D.  Macauley  (4  T.  R.  611)  589 

V.  Thomas  (25  Ind.  268)  707 

Allaire  v.  Whitney  (1  Hill,  484)  49,  502 

Allaire  Works  v.  Guion  (10  Barb.  55)         498 

Allamon  v.   The  Mayor  of  Albany   (43 

Barb.  33)  254 

Allard  v.  Smith  (2  Met.  Ky.  297)  711 

Allen  V.  Anderson  (2  Bibb,  415)  200 

V.  Blunt  (2  Woodb.  &  M.  121)  105, 

109,  189 

V.  Cameron  (3  Tyr.  907 ;   1   Cr.  & 

M.  832)  509 

V.  Carty  (19  Vt.  65)  607 

V.  Clark    (7    L.    T.    R.    781  ;    11 

Weekly  R.  304)  589 

V.  Curies  (6  Ohio  St.  505)  237 

V.  Doyle  (33  Me.  420)  607 

V.  JarVis  (20  Conn.  38)  313 

V.  McKibben  (5  Mich.  449)  244 

V.  McNew  (8  Humph.  46)  508 

V.  Merchants'  Bank  (22  Wend.  215)  377 
V.  Ormond  (8  East,  4)  153 

V.  Suvdam     (17    Wend.     368;    20 

Wend.  321)  377,391 

y.  Thrall  (36  Vt.  711)  243 

Allison  V.  Chandler  (11  Mich.  542)       33,  100, 

660 

V.  McCune  (15  Ohio,  726)  26 

Allsop  V.  Allsop  (2  L.  T.  R.  [N.  S.]  290)    99, 

627 
Alna  V.  Plummer  (4  Greenl.  258)  204 

Alsager,  Assignee,  v.  Close  (10  Mees.  & 

W.  576)  564 

Althorf  V.  Wolfe  (22  N.  Y.  355)  646 

Amer  v)  Longsti-eth  (10  Penn.  145)  525 

American   Express    Co.    v.   Dunlevy    (3 

Am.  Law  Reg.  [N.  S.]  266)  378 

American   Ins.  Co.  v.  Bryan  (26  Wend. 

563)  278 

Amey  v.  Long  (9  East,  472)  669 

Amiable  Nancy,  The  (3  Wheat.  546)    70,  108, 

523,  536 

Amory  v.  Brodrick  (5  Barn.  &  Aid.  712)    682 

V.  Hamilton  (17  Mass.  103)  386 

V.  McGregor  (15  Johns.  24)      397,  442 


xxu 


TABLE    OF    CASES. 


Amoskeag  Mfg.  Co.  v.  Goodale  (46  N.  H. 

53)  44,  48 

Anderson  v.  Buckton  (1  Strange,  192)         146 
V.  The   Nortlioiistern   U.  Co.  (4 

L.  T.  K.  [N.  S.j  216)  80 

Andres   v.  Koppenheafer  (3  Scrg.  &  II. 

255)  627 

Andrews  v.  Askey  (8  Car.  &  P.  7)  632 

V.  Diirant  (18  N.  Y.  496)       .545,  567 

V.  Hammond  (8  Blackf.  540)         689 

Angelloz  v.  llivollet  (2  La.  Ann.  K.  652)    239 

An;;ier  v.  Taunton  Paper  Maufg.  Co.  (1 

Grav,  Mass.  621)  557 

Anna  Maria,  The  (2  Wheat.  327)  70 

Annan  v.  Job  (10  Jur.  1083)  689 

Ann  Caroline,  The  (2  WaUace,  538)  536,  537 
Anonymous  (1  Johns.  315)  4.33 

Anonymous  (6  Mod.  11,  29)  449 

Anthony  v.  Slaid  (11  Met.  290)  90 

Apollon,  The  (9  Wheat.  362)  108 

Appel  V.  Woltmann  (38  Mo.  194)  262 

Apps  V.  Day  (26  Eng.  L.  &  E.  335)  710 

Arcambel  v.  Wiseman  (3  Dall.  306)  107 

Archer  v.  WiUiams  (2  Car.  &  K.  26)  294,  577 
Arden   v.    Goodacre    (11    C.   B.   371;    2 

Lowndes,  M.  &.  P.  383)  589,  594 

Armfield  v.  Nash  (31  Miss.  361)  231 

Armory  v.  Delamirie  (1  Strange,  504)         543 
Armstrong  v.  Percy  (5  Wend.  535,  538)    64, 

84,  330 
V.  Pierson  (8  Iowa,  29)  630 

Armsworth  v.   Southeastern   Railw.   Co. 

(11  Jur.  758)  646 

Armytage  v.  Haley  (4  Q.  B.  917)  710 

Arnold  v.  Suffolk  Bank  (27  Barb.  424)      296, 

420 
Arnott  V.  Redfern  (3  Bing.  353)  276,  431 

Arrington  v.  Wilmington  &  Weldon  R. 

R.  Co.  (6  Jones  L.  [N.  C]  68)  397 

Arrowsmith  v.  Gordon  (3  La.  Ann.  105)    220, 
227,  299,  555,  678,  714 
Arthur  v.  The  Schooner  Cassius  (2  Story, 

81)  399 

Ascutney  Bank  v.  McK.  Ormsby  (28  Vt. 

721)  223 

Ashburner  v.  Balchen  (3  Seld.  262)  405 

Ashby  V.  Bates  (15  Mees.  &  W.  589)  684 

V.  Eastern  R.  R.  Co.  (5  Met.  368)    668 

V.    White   (1    Salk.    19;    2   Lord 

Raym.  938)  26,  27,  44 

Ashe  V.  De  Rossett  (5  Jones  L.  [N.  C.] 

299)  80 

Ashford  v.  Thornton  (1  Barn.  &  Aid.  405)   17 
Ashland  Fire  Ins.   Co.  v.  Housinger  (10 

Ohio  St.  10)  '  284 

Ashley  v.  Harrison  (Peake  N.  P.  Cases, 

194;  S.  C.  1  Esp.  48)  89 

V.  Warner  (11  Gray,  43)  117 

Ashlin  V.  Parkin  (2  Burr.  665)  135 

Asprey  v.  Levy  (16  Mees.  &  W.  851)  276,  366 
Astley  V.  Weldon  (2  Bos.  &  P.  346)  462,  463, 
466,  468,  472,  474,  476 
Atchison   v.    The  Doctor  Franklin    (14 

Mo.  63)  536 

Atherton  v.  Williams  (19  Ind.  105)  344 

Atkinson  v.  Coatsworth  (8  Mod.  33)  343 

Atkisson  v.  Steamboat  Castle  Garden  (28 

Mo.  [7  Jones]  124)  396 


PAGE 

Atkyns  v.  Kinnior  (4  Exch.  776)  466 

Atlanta  &  La  (i range  R.  R.  Co.  v.  Ilod- 

nett  (29  Ga.  461)  220 

Atlantic  &   Great  Western  R.  R.  Co.  v. 

Campbell  (4  Ohio  St.  583)  694 

Attack  V.  Bramwell  (3  Best  &  S.  520;  32 

L.  J.  R.  [N.  S.]  Q.  B.  146)  622 

Attersoll  v.  Stevens  (1  Taunt.  182,  198)     151, 

1.59,  209 
Auchmuty  v.  Ham  (1  Denio,  495)  524,  670 
Aulick  V.  Adams  (12  B.  Monr.  104)  683 

Austin  V.  Crawford  (7  Ala.  335)  380 

Austin  V.  Hilliers  (Hard.  408)  711 

V.  Wilson  (4  Cush.  273)  530 

Avenell  v.  Croker  (Moo.  &  M.  172)  47 

Averett  v.  Brady  (20  Ga.  523)  133,  136 

Avery  v.  Brown  (31  Conn.  398)  502 

Ayer  v.  Spring  (9  Mass.  8  ;  10  Mass.  80) 

140,  141 
Aylet  V.  Dodd  (2  Atk.  238)  460 

Ayres  v.  Pease  (12  Wend.  393)  473 


B. 

Babcock  v.  Gill  (10  Johns.  287)  560 

Backenstoss  v.  Stabler  (33  Penn.  251)        561, 

566,  569 
Backus'  Admr's  v.  McCoy  (3  Ham.  Ohio 

St.  211)  182 

Backus  V.  Richardson  (5  Johns.  476)  686 

Bacon  v.  Callender  (6  Mass.  303)  178 

j;.  Cropsey  (3  Seld.  195)  607 

V.  Inhabitants  of  Charlton  (7  Cush. 

581)  691 

V.  Towne  (4  Cush.  217)  642 

Bacot  V.  Parnell  (2  Bailey,  424)  424 

Badger  v.  Titcomb  (15  Pick.  409)        246,  248 
Badgley  v.  Decker  (44  Barb.  577)  631 

V.  Heald  (4  Oilman,  64)  390 

Badillo  r.  Tio  (7  La.  Ann.  487)  555 

Bagley  v.  Peddie  (5  Sandf.  192;  16  N.  J. 

469)  479 

V.  Smith  (10  N.  Y.  489)  101,  231 

Bagnal  v.  Sacheverell  (Cro.  Eliz.  292)         681 

Bailey  v.  Damon  (3  Gray,  92)  405 

V.  Scott  (13  Wis.  618)  189 

r.  Shaw  (4  Fost.  297)  395,396 

Baillie  v.  Bryson  (1  Murr.  317)  527 

Bainbridge  v.  Wilcocks  (Baldwin   C.  C. 

R.  536)  446 

Baker,  Ex'r,  v.  Baker  (4  Dutcher  N.  J. 

13)  247 

Baker  v.  Bailey  (16  Barb.  54)  647 

V.  Bolton  (1  Camp.  493)  644 

V.  Connell  (1  Daly,  469)  488 

t;.  Dewey  (1  Barn.  &  C.  704)  183 

V.  Freeman  (9  Wend.  36)  609 

V.  Garratt  (3  Bing.  56)  369,  602 

V.  Johnson  (2  Hill,  342)  667 

V.  Martin,  Adm'r  (3  Barb.  634)      277, 

362 
V.  Railsback  (4  Ind.  533)  504 

V.  Shephard  (4  Fost.  208)  663 

V.  Wheeler  (8  Wend.  505)         545,  561, 

567,  613 
V.  Wilkins  (3  Barb.  220)  629 

Balden  v.  Temple  (Hobart,  202)  596 


TABLE   OF    CASES. 


XXIII 


PAGE 

Baldwin  i'.  Bennett  (4  Cal.  392)  80,  218 

2-21 
V.  Calkins  (10  "Wend.  167)  G68 

V.  Cole  (6  Mud.  212)  568 

V.  Harvey  (Anthony  N.  P.  214)    548 
w.  Lessner  (8  Cobb,  71)  220 

V.  Mimn  (2  Wend.  399)         174,  197, 

199 
V.  Porter  (12  Conn.  473)  570 

V.  Western  R.  R.  Co.  (4  Gray, 

333)  677 

Baldv  V.  Stratton  (11  Penn.  316)  422 

Bales  V.  Wingfield  (4  Q.  B.  580)  593 

Ball  V.  Bruce  (21  111.  161)  529,  631 

V.  Coggs  (1  Bro.  Pari.  Cas.  140)  251 

V.  Liney  (44  Barb.  505)  569 

Ballentine  v.  Robinson  (46  Penn.  177)  313 
Ballingalls  v.  Gloster  (3  East,  481)  274 

Ballon  V.  Farnum  (11  Allen,  73)  648 

Balsley  v.  HotFinan  (13  Penn.  603)  482 

Bait.  &  Ohio  R.  R.  Co.  v.  Blocher  (27  Md. 

277)  529 

Bait.  &  Ohio  R.  R.  Co.  v.  State  use  of  Kelly 

(24Md.  271)  646,647 

Bait.  &  Ohio  R.  R.  Co.  v.  Thompson  (10 

Md.  76)  98 

Bait.  Marine  Ins.  Co.  v.  Dalrymple  (25 

Md.  269)  '  556 

Bamford  v.  Harris  (1  Starkie,  343)  511 

Bangor  Bank  v.  Hook  (5  Greenl.  174)  277 
Bank  of  Columbia  v.  Patterson  (7  Cranch, 

299)  238 

Bank  of  Kentucky  v.  Wister  (2  Pet.  U. 

S.  318)  261 

Bank  of  Montgomery  v.  Reese  (26  Penn. 

143)  301,  551 

Bank  of  Orange  v.  Brown  (3  Wend.  158)  373 
Bank  of  Orleans  v.  Smith  (3  Hill,  560)  386 
Bank  of  Rome  v.  Curtis  (1  Hill,  275)  592 

iJ.  Mott  (17  Wend.  554)       608 
Bank  of  U.  S.  v.  Dunseth  (10  Ohio  St. 

18)  139 

V.  Magill  (Paine  C.  C.  R. 

661,  669)  482 

Banks  v.  Hatton  (1  Nott.  &  McC.  221)  549 
Bann  v.  Dalzell  (Mood  &  M.  228)  275,  276 
Bannister  v.  Roberts  (35  Me.  75)  445 

Bannou  v.  Bait.  &  Ohio  R.  R.  Co.  (24  Md. 

108)  532,  648 

Barb  y.  Fish  (8  Blackf  481)  575 

Barber  v.  Chapin  (28  Vt.  413)  491 

V.  Killbourn  (16  Wis.  485)  529 

V.  Rose  (5  Hill,  76)  498,  505 

Barclay  v.  Gooch  (2  Esp.  N.  P.  Cas.  571) 

354,  361 
V.  Kennedy  (3  Wash.  C.  C.  350)     440 
V.  Stirling  (5  Maule  &  S.  6,  10)      490 
Barcus  v.  Hannibal,  Ralls  &  Paris  Plank 

Road  Co.  (26  Mo.  102)  242 

Barker  v.  Corey  (15  Ohio  St.  9)  541 

V.  Dixie  (2  Strange,  1051)  710 

V.  Green  (2  Bing.  317)  593 

V.  Mathews  (1  Denio,  355)  614 

V.  Troy  &  Rutland  R.  R.  Co.  (27 

Vt.  780)  236 

Barnard  v.  Conger  (6  McLean,  497)  291 

V.  Darling  (11  Wend.  28)  451 

V.  Poor  (21  Pick.  378)     10.5,  108,  527 


Barned  r.  Hamilton  (2  Railw.  Cas.  624)     3U6 

Barnes  v.  Bartlett  (15  Pick.  71)  5S3 

f.  Martin  (15  Wis.  240)  639 

V.  Shinholster  (14  Ga.  131)  501 

V  Willett  (35  Barb.  514)  38 

Barnett  v.  Luther  (1  Curtis  C.  C.  R.  434)    53 

V.  Reed  (51  Penn.  190)  529 

V.  Stanton  (2  Ala.  [N.  S.]  181)        319 

Barnette  i,-.  Hicks  (6  Tex.  352)  707 

Barney  v.  City  of  15uft'alo  (15  Barb.  457)    664 

V.  Dewey  (13  Johns.  224)  27 

Barnum  v.  Vandusen  (16  Conn.  200)  146 

Barnwell  v.  Mitchell  (3  Conn.  101)  276 

Baron  v.  Abeel  (3  Johns.  481)  135 

Baron  De  Bode's  Case  (8  Q.  B.  208)  690 

Barr  v.  Haseldon  (10  Rich.  Eq.  [S.  C]  53) 

433 
V.  Stevens  (1  Bibb,  292)  30 

Barrett  v.  Porter  (14  Mass.  143)  191 

Barrow  v.  Arnaud  (10  Jurist,  319  ;  S.  C. 

8  Q.  B.  595)  609 

V.  Paxton  (5  Johns.  258,  260)         418 
Barruso  v.  Madan  (2  Johns.  145)  678 

Barry  v.  Bennett  (7  Mete.  354)  549 

V.  Mandell  (10  Johns.  563)  347 

Barth  v.  Merritt  (20  Mo.  567)  707 

Bartholomew  v.  Bentley  (15  Ohio  St.  659, 
666) 
V.  Chapin  (10  Mete.  1)  673 

Bartlett  v.  Blanchard  (13  Gray,  429)  201 

w.  Brickett  (14  Allen,  62)  579 

r.  Eveleth  (4  Mete.  149)  668 

V.  Holmes  (20  Eng.  L.  &  E.  277  ; 

13  C.  B.  630  ;  17  Jur.  858)     505 
V.  Kidder  (14  Gray,  449)  583 

Bartlev  v.  Richtmyer  (4  Comst.  38)     631,  633 
Barton  v.  Fisk  (30  N.  Y.  166)  454 

V.  Glover  (Holt  N.  P.  43)         467,  481 
Bartsch  v.  Atwater  (1  Conn.  409)  261 

Bash  V.  Bash  (9  Barr  [Penn.],  260)  207 

Bassett  v.  Kinney  (24  Conn.  267)  434 

V.  The  Salisbury  Manufacturing- 
Co.  (8  F'ost.  N.  H.  438)  45 
Basten  v.  Butter  (7  East,  479)     492,  493,  494, 

510 
Batchelder  v.  Sturgis  (3  Cush.  201)    186,  190, 

194,  220,  715 
Bateman  v.  Goodyear  (12  Conn.  575)  533 

Bates  V.  Courtwright  (36  111.  518)  640 

Bathishill  v.  Reed''(37  Eng.  L.  &  E.  317)    150 
Batterman  i'.  Pierce  (3  Hill,  171)        495,  502, 

505 

Battey  v.  Holbrook  (11  Grav,  212)  453 

Battin  v.  Bigelow  (1  Petcrs'C.  C.  452)        129 

Battley  v.  Faulkner  (3  Barn.  &  Aid.  288)   116 

Bauer  v.  Roth  (4  Rawle,  83)  362 

Baxter  v.  Bradbury  (20  Me.  260)  188 

V.  Rverss  (13  Barb.  267)  174,  180 

V.  Taylor  (4  Barn,  &  Adol.  72)        151 

v.  Wales  (12  Mass.  365)  232 

V.  Winooski  Turnpike  Co.  (22  Vt. 

114)  29,  153 

Bavley  i;.  Bates  (8  Johns.  185)  587,  607 

Baylis  v.  Usher  (4  Moore  &  P.  790 ;  S.  C. 

7  Bing. 153)  404 

Baysand  v.  Lovering  (1  Cr.  C.  C.  R.  206)  640 
Bayse  v.  Ambrose  (28  Mo.  [7  Jones]  39)    465, 

479,  718 


XXIV 


TABLE    OF   CASES. 


PAGE 

Beach  v.  Beach  (20  Vt.  83)  130 

V.  Grain  (2  C'omstock,  86)  248 

V.  McClintook  (renn.  y.  C.  not 

i-cportud)  206 

V.  Raniiev  (2  Hill,  309)  626 

Beale  v.  Finch  ('l  Kern.  128)  682,  685 

V.  Haves  (5  Sandf.  640)  465,  480 

V.  Thompson  (3  Bos.  (li  P.  407)         105, 

189 
Beals  I'.  Gucrnscv  (8  Johns.  446)  441 

V.  Olmstead  (24  Vt.  114)  328 

V.  TeiTv  (2  Sandf.  S.  C.  127)       292,  297 
Bearce  v.  Jackson  (4  JMass.  408)  168 

Beard  v.  Van  Wickle  (3  Cow.  335)  689 

Bearden  v.  Smith  (11  Kich.  L.  [S.  C] 

554)  479,  480 

Beardmore  v.  Carrino-ton  (2  Wils.  244)       519 
Bcardslev  i'.  Root  (11  Johns.  464) 
Beasley  v.  Meigs  (16  111.  139) 
Beaulieu  r.  Parsons  (2  Minn.  37) 
Beaumont  v.  Greathead  (2  C.  B.  494) 
Beanpland  v.  McKeen  (28  Penn.  124) 
Becktbrd  v.  Hood  (7  T.  R.  620) 

V.  ^lontag'ue  (2  Esp.  476) 
Beckham  v.  Drake  (8  Mees.  &  W.  846  ; 
11  Mees.  &  W.  315  ;   2  H.  of  L.  Cas. 
579) 
Beckmann  v.  Bormann  (3  E.  D.  Smith, 

409) 
Beckwith  v.  Nott  (Cro.  Jac.  504) 

r.  Trustees  of  Hartford,  Provi- 
dence &  Fishkill  R.  R.  Co. 
(29  Conn. 268) 
Bedell  v.  Powell  (13  Barb.  183) 
Bedino-field  v.  Onslow  (3  Lev.  209) 
Bee  Printing  Co.  v.  Hichborn  (4  Allen,  63) 

236,  693 
Beecher  v.  Denniston  (13  Gray,  354) 

V.  Derby  Bridge  &  FeVry  Co.  (24 
Conn. 491) 
Beecker  v.  Vrooman  (13  Johns.  302) 
Beekman  v.  Chalmers  (1  Cow.  584) 

V.  S.  &  S.  R.  R.  Co.)  3  Paige, 
45) 
Beers  v.  Housatonic  R.  R.  Co.  19  Conn. 

566) 
Beisiegel  v.  N.  Y.  Central  R.  R.  Co.  (34 

N.  Y.  622) 
Belbin  v.  Butt  (2  Mees.  &  W.  422) 
Belden  v.  Nicolay  (4  E.  D.  Smith,  14) 

V.  Seymour  (8  Conn.  304) 
Belknap  v.  Godfrey  (22  Vt.  288) 
Bell  V.  Cunningham  (3  Peters,  69) 


356 
628 
707 
51 
182 
586 
593 


466 


329 
247 


458 
678 
143 


542 

106 
496 
671 

667 

538 


534 

453 

292 

185 

513 

382, 

515 

V.  McClintock  (9  Watts,  119)  148 

V.  Morrison  (27  Miss.  68)     634,  681,  707 

V.  The  Midland  Counties  R.  R.  Co. 

(4  L.  T.  R.   [N.   S.]   293;   10 


73, 


C.  B.  [N.  S.]  287) 
V.  Walker  (5  Jones  L.  N.  C.  43) 

Bellamy  v.  Ragsdale  (14  B.  Monr.  364) 
Bellinger  v.  The  N.  Y.  Central  R.  R.  Co, 

(23  N.  Y.  42) 
Belt  V.  Worthington  (3  Gill  &  J.  247) 
Bement  v.  Smith  (15  Wend.  493) 
Bender  v.  Fromberger  (4  Dall.  436,  444) 


5.30 
220, 
424 
203 

120 
582 
314 
33, 
177 


Bender's  Adm'rs  v.  Bender  (37  Penn.  419) 

207 
Bendcrnagle  v.  Cocks  (19  Wend.  207)        247, 

248 

Benedict  v.  Goit  (3  Barb.  459)  121 

Benjamin  v.  Benjamin  (15  Conn.  347)         562 

V.  Hillard  (23  How.  U.  S.  149)    291 

Benkard  v.  Babcock  (17  Abbott,  421  ;  2 

Robertson,  175)  213,  501 

Bennett  v.  Allcott  (2  T.  R.  166)  145,  6.33 

V.  Bennett  (6  Carr  &  P.  588)  629 

V.  Brown  (31  Barb.  158  ;  20  N.  Y. 

99)  453 

V.  City  of  New  Orleans  (4  La. 

Ann.  120)  120 

V.  Hart  (Sayer  on  Damages,  244) 

671 
V.  Jenkins  (13  Johns.  50)  174 

V.  Lockwood  (20  Wend.  223)  88, 

583,  619 
V.  Smith  (21  Barb.  439)  638 

v.  Thompson  (13  Ired.  L.  146)      150, 

625 

Benson  D.  Atwood  (13  Md.  20)  405 

V.  Frederick  (3  Burr.  1845)  528 

V.  Gibson  (3  Atk.  395)  460 

V.  Maiden  and  Melrose  Gas-light 

Co  (6  Allen,  149)  71 

V.  The  New  Jersey  R.  R.  &  Trans- 
portation Co.  (9  Bosw.  412)   401 
Benton  v.  Dale  (1  Cow.  160)  671 

Berkley  v.  Harrison  (MSS.)  96 

Bernhles  v.  Fuller  (2  Camp.  426)  431 

Berry  i>.  Bakeman  (44  Me.  164)  423 

r.  Da  Costa  (1  L.  R.  C.  P.  331)        422 
V.  Dwinel  (44  Me.  255)  72,  311 

V.  Harris  (43  N.  H.  376)  452 

V.  Vantries  (12  Serg.  &  R.  89)  566 

V.  Vreeland  (1  Zabr.  183)  516,  709 

V.  WLsdom  (3  Ohio  St.  241)  465 

Best  V.  Allen  (30  111.  30)  529 

Betts  V.  Burch  (4  Hurl.  &  N.  506)  478 

V.  City  of  Williamsbxirgh  (15  Barb. 

255)  664 

V.  Lee  (5  Johns.  348)  560,  575 

Beveridge  v.  Welch  (7  Wis.  465)  588 

Beyer  v.  Tanner  (29  111.  135)  663 

Bezzell,  Adm'r,  v.  White  (13  Ala.  [N.  S.] 

422)  368 

Bickell  V.  Colton  (41  Miss.  368)  442 

Bickford  v.  Page  (2  Mass.  455,  461)  186 

Bicknall  v.  Waterman  (5  R.  I.  43)  269 

Bigelow  V.  Hartford  Bridge  Co.  (14  Conn. 

565)  30 

Biggins  V.  Goode  (2  Crom.  &  Jer.  364)        622 

Billings  V.  Ames  (32  Mo.  265)  675 

V.  Vanderbeck  (23  Barb.  546)         291 

Bingham  v.  Richardson  (Winston's  L.  R. 

N.  C.  217)  4.55 

V.  Weiderwax  (1  Comst.  [1  N. 

Y.J  509)  185 

Birchard  v.  Booth  (4  AVis.  67)     113,  528,  640, 

677 
Bird  V.  Maver  (8  Wis.  362)  328 

V.  Randall  (1  W.  Bl.  373,  387  ;  3 

Burr.  1345)  482,  483 

V.  The  W.  &  M.  R.  R.  Co.  (8  Rich. 

Eq.  [S.  C]  46)  533 


TABLE    OF    CASES. 


XXV 


PAGE 

Birge  v.  Gardiner  (19  Conn.  507)  538 

Biniey  v.  N.  Y.  &  Wiisliingtou  Printing 

Tel.  Co.  (18  Md.  341)  411 

Bisbey  V.  Shaw  (12  N.  Y.  [2  Kern.]  67)      628 

Bischof  t'.  Lucas  (6  Ind.  26)  513 

Bishop  V.  Church  (2  Ves.  Sr.  371)  449 

V.  Williamson  (2  Fairf.  495)  82 

Bishop  of  London  i;.  Ffytche  (1  East,  487)  478 

Bissell  V.  Erwin  (13  La.  143)  181 

V.  Hopkins  (4  Cow.  53)     441,  444,  567 

Bitner  v.  Brough  (11  Penn.  127)    69,  197,  228 

Black  V.  Baxendale  (1  Exch.  410)  400 

V.  The  Camden  &  Amboy  R.  R.  & 

T.  Co.  (45  Barb.  40)"  397,  442 

V.  The  Carrolton  R.  R.  Co.  (10  La. 

Ann.  33)  710 

BlackAvell  v.  Justices  of  Lawrence  Co.  (2 

Blackf.  143)  182 

Blair   v.    The    Milwaukee   &   Prairie  du 

Chien  R.  R.  Co.  (20  Wise.  262)  693 

Blake's  Case,  (6  Coke,  43)  684 

Blake  y.  Burnliam  (29  Vt.  437)  180 

V.  Ferris  (5  N.  Y.  [1  Seld.]  48)  373 

V.  Jerome  (14  Johns.  406)  142 

V.  Midland  R.  R.  Co.   (10  Eng.  L. 

&  E.  437  ;  S.  C.  18  Q.  B.  93)     646 

Blakeley  v.  Duncan  (4  Tex.  184)  558 

Blanchard  v.  Blanchard  (48  Me.  174)  182 

V.  Ely  (21  Wend.  342)    71,94,211, 

213,  223,  501 

V.  Morris  (15  111.  35)  707 

Blanchard's  Gun-Stock  Turning  Factory 

?;.  Warner  (1  Blatch.  258)  109 

Blasdale  v.  Babcock  (1  Johns.  517)  330 

Blavraire  v.  Haley  (6  Mees.  &  W.  55)  6.33 

Bleaden  v.  Charles  (7  Bing.  246)  276,  366 

Blight's  Ex'rs  v.  Ewing  (26  Penn.  135)  129 
Blodget  V.  Brattleboro'  (30  Vt.  579)  587,  601 
Blofeld  V.  Payne  (4  Barn.  &  Ad.  410)  47,  675 
Bloodgood  V.  Mohawk  &  Hudson  R.  R. 

Co.  (18  Wend.  9)  667 

Blossom  V.  Knox  (3  Chandler,  295)  187 

Blossom,  The  Pilot  Boat  (Olcott,  188)  536 
Blot  V.  Boiceau  (3  Comst.  78 ;  1    Sandf. 

S.  C.  Ill)  374,  377,  380,  387 

Bloxam  v.  Hubbard  (5  East,  409,  420)  570 
Bluett  V.  Osborne  (1  Starkie,  384)  328 

Blum  V.  Higgins  (3  Abbott's  Pr.  R.  104)  707 
Blunt  v.  Aiken  (15  Wend.  522)  156 

V.  McCormick  (3  Denio,  283)     114,  155 
Blydenburgh  t;.  Welsh  (Baldwin's  C.  C. 

R.  331)  310 

Blythe  v.  Tompkins  (2  Abbott's  Pr.  R.  468)  649 

Boardman  v.  Gore  (15  Mass.  331)  539 

V.  Keelcr  (21  Vt.  77)  202 

Boddam  v.  Riley  (2  Bro.  C.  C.  2)  430 

Bodley  v.  Reynolds  (8  Q.  B.  779)  544 

Bogel  V.  Beir(15  La.  Ann.  163)  587 

Bogert  V.  Burkhalter  (2  Barb.  525)  680 

Boggs  V.  Martin  (13  B.  Monr.  239)  512 

Bohun  V.  Taylor  (6  Cow.  313)  688 

Bolles  V.  Beach  (2  Zabr.  680)  184 

Bolton  V.  Crowther  (4  Dowl.  &  R.  195)      120 

V.  Miller  (6  Ind.  262)  631,  633 

Bonafous  v.  Rybot  (3  Burr.  1370)  450 

V.  Walker  (2  Term,  126)  589 

Bonaparte  v.   Camden   &   Amboy  R.  R. 

Co.  (1  Baldwin,  205)  667 


Bond  V.  Hilton  (2  Jones  L.  N.  C.  149)  44 

V.  Quattlebaum  (1  McCord,  584)        180 
Bonner  v.  Charleton  (5  East,  139)  689 

V.  Copley  (15  La.  Ann.  504)  695 

Bonney  v.  Seelev  (2  Wend.  481)  361 

Boorman  v.  Nash  (9  Barn.  &  C.  145)  317 

Booth  V.  Ablcman  (20  Wise.  602)  444 

V.  Millns  (15  Mees.  &  W.  G69)  684 

Bord.  &  S.  A.  T.  Co.  v.  Camden  &  Am- 
boy R.  R.  Co.  (2  Harr.  N.  J.  314)  121 
Borradaile  v.  Brunton  (8  Taunt.  535  ;  S. 

C.  2  J.  B.  Moore,  582)  93,329 

Borrekins  r.  Bevan  (3  Rawle,  23)  324 

Borries  i-.  Hutchinson   (18  C.  B.  [N.   S.] 

445  ;  34  L.  J.  [N.  S.]  Pt.  2,  C.  P.  169)      80 
Boston  &  Maine  R.  R.  Co.  v.  County  of 

Middlesex  (1  Allen,  324)  668 

Boston   Manufacturing  Co.  v.  I'iske   (2 

Mason,  120)  108,  521 

Boston  &  Roxburv  Mill-dam  Cor.  v.  New- 
man (12  Pick.  4*67)  120 
Boston  Water  Power  Co.  r.  Boston  &  W. 

R.  R.  Co.  (16  Pick.  512;  23  Pick.  360)     120 
Bostwick  V.  Lewis  (1  Day,  34)  688 

Bosworth  V.  Inhabitants  of  Swansev  (10 

Mete.  363)  "  535 

Botelar  v.  Bell  (I  Md.  173)  637 

Boulard  v.  Calhoun  (13  La.  Ann.  445)  532 
Boulter  v.  Webster  (13  Weekly  R.  289)  646 
Bouton  V.  Reed  (13  Gray,  530)  311 

Bowen  v.  Stoddard  (10  Mete.  375)  271 

V.  The  Lake  Erie  Tel.  Co.  (1  Am. 

Law  Reg.  685)  408 

Bower  v.  Hill  (1  Bing.  N.  C.  559)  48,  148 

Bowler  v.  Lane  (3  Mete.  Ky.  311)  532 

Bowman  v.  Cornell  (39  Barb.  69)  588 

V.  Teal  (23  Wend.  306)  404 

Boyce  v.  Bayliffe  (1  Campb.  58)  91 

V.  The   California   Stage   Co.    (25 

Cal.  460)  708,711 

Boyce's  Ex'rs  v.  Grundy  (9  Peters,  275)       444 

Bovd  V.  Brown  (17  Pick.  453)  71,  710 

V.  Bvrd  (8  Blackf  113)  633 

V.  Fitt  ( 14  Irish  Com.  L.  43)  81 

V.  Gilchrist  (15  AU.  849)  438 

V.  Weeks  (2  Denio,  321)  129 

Boyd's  Lessee  v.  Cowan  (4  Dall.  138)  119 

Boyle  V.  Brandon  (13  Mees.  &  W.  738)         89 

Boynton  v.  Kellogg  (3  Mass.  189)  423 

V.  Peterborough  &  Shirley  R.  R. 

Co.  (4  Cush.  467)      '  663 

V.  Trumbull  (4  Am.  Law   Reg. 

[N.  S.]  512)  711 

Bovs  V.  Ancell  (5  Bing.  N.  C.  390)  466 

Bracegirdle  v.  Oxford  (2  Maule  &  S.  77)  533 
Bracey  v.  Carter  (12  Ad.  &  E.  373)  509 

Brackett  v.  McNair  (14  Johns.  170)       73,  398 
V.  Morse  (23  Vt.  554)  236 

Bradcn  v.  Walker  (8  Humph.  34)  630 

Bradlaugh  v.  Edwards  (11  C  B.  [N.  S.] 

377)  649,  710 

Bradley  v.  Denton  (3  Wis.  557)  218,  405 

V.  Morris  (Busbee  N.  C.  395)  528 

V.  Rea  (14  Allen,  20)  58,  98,  329,  333, 

492 
Bradlie  v.  The  Maryland  Ins.  Co.  (12  Pe- 
ters, 378)  '  281 
Bradstreet,  ex-parte  (7  Peters,  634)  683 


XXVI 


TABLE    OF    CASES. 


Braclt  V.  Towsley  (13  Wend.  254)        626, 
Erady  v.  lloldcnniin  (19  Ohio,  26) 

V.  Weeks  (3  JJiirh.  157) 
Biainard  v,  Boston  &  N.  Y.  Central  R. 
R.  Co.  (12  Gray,  407) 
V.  Jones  (18  N.  Y.  35) 
Brake  v.  Corniu-  (19  Mo.  125) 
Braman  v.  Bingliam  (26  N.  Y.  483) 

V.  Hess  (13  Johns.  52) 
Branch  v.  Doane  (18  Conn.  233)  144, 

Brand  v.  Troy  &  S.  K.  Co.  (8  Barb.  368) 
Brandt  v.  Bowlby  (2  Barn.  &  Ad.  932) 

V.  Foster  (5  Iowa,  287)     168,  180, 
Brangwin  v.  Perrot  (2  W.  Bl.  1190) 
Brannin  v.  Johnson  (19  Me.  361 ) 
Branscombe  j;.  Scarborouoh  (6  Q.  B.  13) 
Brantingham  v.  Fav  (1  Jolins.  Cas.  255) 
Brass  v.  Worth  (40'Barb.  648) 
Bratt  V.  Ellis  (Cited  in  Babington  on  auc- 
tions, 3  Law  Lib.  [N.  S.]  184 
Brannberger  v.  Cleis  (4  Am.  Law  Reg. 

[N.  S.1587) 
Brazier  v.  Wynkoop  (3  Johns.  Cas.  440) 
Breckenridge  v.  Brooks  (2  A.  K.  Marsh. 

341) 
Brcdow  V.  Mutual  Savings  Inst.   (28  Mo. 

181) 
Breed  v.  Eastern  Railroad   Co.  (5  Gray, 

470,  note) 
Breese  v.  The  U.  S.  Telegraph  Co.  (45 

Barb.  274) 
Breitenbach  v.  Turner  (18  Wis.  140) 
Brewer  v.  Temple  (15  How.  Pr.  286) 
V.  Tyringham  (12  Pick.  547) 
Bridge  v.  Gr.  J.  R.  Co.  (3  Mees.  &  W. 
246)  154, 

V.  Mason  (45  Barb.  37) 
V.  Wain  (1  Stark.  504) 
Bridges  v.  Hvatt  (2  Abbott's  Pr.  R.  449) 

V.  Stickney  (38  Me.  361) 
Brido-man  v.  Steamboat  Emily  (18  Iowa, 
509)  395, 

Brierly  v.  Kendall  (10  Eng.  L.  &  E.  319; 

S.  C.  17  Q.  B.  937)  614, 

Brioo-s  V.  Boston  &  Lowell  R.  R.  Co.  (3 
Am.  Law  Reg.  [N.  S.]  250  ; 
6  Allen,  246)  556 

y.  Evans  (5  Ired.  16)  633 

V.  Gleason  (29  Vt.  78)  588 

V.  N.   Y.  Central  R.    R.    Co.    (28 

Barb.  515)  401 

V.  Richmond  (10  Pick.  391 )  507 

Brio-ham  v.  Hawley  (17  111.  38)  220,  243 

Bright  V.  Bovd  (1  Story,  479)  136 

V.  Furrier  (Bull.  N.  P.  269)      274,  275 
Biill  V.  Flagler  (23  Wend.  354)  697 

Briuckerhoff  v.  Phelps  (24  Barb.  100;  43 

Barb.  469)  197 

Brinkerhoff  v.  Olp  (35  Barb.  27)  479 

Brinley  v.  National  Ins.    Co.   (ll   Mete. 

195)  282,  285 

Bristol  V.  Tracy  (21  Barb.  236)  242 

Bristol  Manufg.  Co.  v.  Gridley  (28  Conn. 

201)  677 

Bristowe  v.  Fairclough  (1  Man.  &  G.  143)  248 

Britton  v.  Turner  (6  N.  H.  481)  240,  506 

Brizsee  v.  Maybee  (21  Wend.  144)      524,  544, 

578,  580,  582,  583,  620 


PAGE 

627 
672 
156 

668 
484 
512 
190 
267 
146 
535 
397 
183 
482 
616 
482 
53 
550 

392 

646 
180 

438 

563 

668 

411 

262 
228 
434 

538 
377 
332 
479 
64 

396 

615 


Brobst  V.  Skillen  (16  Ohio  St.  382) 
Brock  I).  Smith  (14  Ark.  432) 
Bronson  v.  Green  (2  T^uvall,  Ky.         234 
V.  Rodes  (Sup.  Ct.  U.  S.  18G8) 

Brook  V.  Raw]  (4  Exch.  521 ) 

Brooke  v.  Bridges  (7  J.  B.  Moore,  471) 

Brooks  V.  Hoyt  (6  Pick.  468) 

V.  Hubbard  (3  Conn.  58) 

V.  Kirby  (6  Ark.  453) 

V.  Moody  (20  Pick.  474)  116, 

Broom  v.  Davis  (7  East,  479) 

V.  Hall  (7  C.  B.  [N.  S.]  503) 

Brower  v.  Merrill  (3  Chandler,  46) 

Brown  v.  Allen  (4  Esp.  158) 

V.  Arrott  (6   Watts  &  S.  402  ;    6 

Whart.  9) 
V.  Barry  (3  Dali.  365) 
V.  Bigelow  (10  Allen  242) 
r.  Bristol  (1  Cow.  176) 
V.  Brooks  (3  Ind.  518) 
V.  Brown  (30  N.  Y.  519) 
V.  Cayuga  &  Susquehanna  R.  R. 

Co.  (12  N.  Y.  486) 
V.  Chadsey  (39  Barb.  253) 
V.  Cummings  (7  Allen,  507) 
V.  Dickerson,  (12  Penn.  372)    168, 
V.  Edgington  (2  Man.  &  Gr.  279) 

V.  Foster  (51  Penn.  165) 
V.  Galloway    (1  Peters'  C.   C.  R. 
291)  131, 

V.  Haynes  (52  Me.  578) 
V.  Hedges  (1  Salk.  290) 
V.  Jarvis  (1  Mees.  &  W.  709) 
V.  Mallett  (  5  C.  B.  599) 
V.  Maulsby  (17  Ind.  10) 
V.  Providence,  Warren  &  Bristol 

R.  R.  Co.  (5  Gray,  35) 
V.  Richmond  (27  Vt.  583) 
V.  Rundlett  (15  N.  H.  360) 
V.  Sax  (7  Cow.  95) 
V.  Seymour  (1  Wils.  5)  705, 

V.  Smith  (12  Cush.  Mass.  366) 
V.  Southwestern    R.    R.    Co.   (36 

Geo.  377) 
V.  Van  Braam  (3Dall.  344,  346) 
V.  Watson  (47  Me.  161) 
V.  Woods  (3  Coldw.  Tenn.  182) 

Browne  v.  Price  (4  C.  B.  [N.  S.]  598) 

Brownell  v.  McEwan  (5  Denio,  367) 

Bruce  v.  Learned  (4  Mass.  614,  617,  618) 
V.  Pettengill  (12  N.  H.  341)         50, 
V.  Priest  (5  Allen,  100) 

Brack  V.  Peyser   (4  Rob.  N.  Y.  Sup'r  Ct. 
514) 

Brugh  V.  Shanks  (5  Leigh,  598) 

Bryan  v.  Acee  (27  Ga.  87) 

Bryant  v.  Am.  Tel.  Co.  (1  Daly,  575)  408, 

V.  Glidden  (36  Me.  36) 
V.  Stilwell  (24  Penn.  314) 
Bryce  v.  Dorr  (3  McLean  583) 
Buchegger  v.  Schultz  (5  Am.  Law  Reg. 

[N.  S.]  95) 
Buck  V.  Hermance   (1  Blatchf.  C.  C.  R. 
398) 
V.  Remsen  (34  N.  Y.  383) 


PAGE 

588 
129 
529 
262, 
264 
631 
135 
601 
268 
600 
193 
492 
392 
147 
688 

386 
683 
320 
671 
628 
148 

664 
531 
91 
177 
328, 
329 
234 

134 
557 
570 
596 
676 
457 

668 
50 
663 
560 
711 
70 

441 
272 

45 
654 

54 
6.34 
578 
611 
639 

717 
611 
532 
412, 
413 
147 
236 
674 

263 

674 
559 


TABLE   OF   CASES. 


XXVll 


PAGE 

Buckmaster  v.  Grundy  (1  Scammon,  312)    181 
Buckwalter  v.  Black   Rock  Bridge   Co. 

(38Penn.  281)  666 

Budd  V.  Walker  (9  Barb.  493)  137 

Buford  V.  Gould  (35  Ala.  [N.  S.]  265)        324 
Bulkeley  v.  Smith  (2  Duer,  261)  682 

Bulkley  r.  Honold  (19  How.  390)  334 

Bull  V.  Griswold  (19  111.  631)  529 

Bullard  v.  Briggs  (7  Pick.  533)  185 

Bullock  o.  Wilson  (3  Porter,  382)  130 

Bunny  v.  Hopkinson  (1  L.  T.  R.  [N.  S.] 

53)  167 

Burden  v.  The  Mayor,  &c.  of  Mobile  (21 

Ala.  309)  48,  148 

Burdett  v.  Withers  (2  Nev.  &  P.  122)         211 
Burk  V.  Clements  (16  Ind.  132)  190 

Burkett  v.  Lanata  (15  La.  Ann.  337)  533 

Burks  V.  Shain  (2  Bibb,  341)  422 

Burlingame  v.  Burlinjjame  (7  Cow.  92)      206 
Burnap  v.  Wight  (14  111.  .301 )  44,  89.  107 

Burnet  v.  Knowles  (3  Dow.  280)  668 

Burnett  v.  Phalon  (21  How.  Pr.  100)        673, 

675 

V.  Simpkins  (24  HI.  264)       422,  423 

Burnham  v.  Best  (10  B.  Monr.  227)  437 

Burpee  v.  Sparhawk  (97  Mass.  342)  421 

Burr  V.  Burr  (7  Hill,  207)  524 

V.  Todd  (41  Penn.  206)  470,  480 

V.  Waterman  (2  Cow.  36)  689 

V.  Wilcox  (22  N.  Y.  551)  484 

Burrage  v.  Crump  (3  Jones  L.  N.  C.  330) 

457,  480 
Burrell  v.  Lithgow  (2  Mass.  526)  601 

V.  N.  Y.  &  Saginaw  Salt  Co.  (14 

Mich.  34)  77,  677 

Burridge  v.  Fortescue  (6  Mod.  60)  449 

Burroughs  «.  Housatonic  R.  R.  Co.  (15 

Conn. 124)  121 

Burrows  v.  Wright  (1  East,  615)  92 

Burt  I'.  Dewey  (31  Barb.  540)  331 

V.  Dutcher  (34  N.  Y.  493)  550,  552 

Burton  v.  Fulton  (49  Penn.  151)  586 

V.  Reeds  (20  Ind.  87)  191 

V.  Schermerhorn  (21  Vt.  289)  503 

V.  Stewart  (3  Wend.  236)  497 

V.  Young  (5  Harring.  Del.  233)      322 

Bush  V.  Canfield  (2  Conn.  485)  300 

V.  Chapman  (2  Greene,  Iowa,  549)     221 

V.  Holmes  (53  Me.  417)  291 

r.  Pettibone  (4  N.  Y.  [4  Comst.]  300)  518 

V.  Phillips  (3  Wend.  428)  159 

V.  Prosser  (11  N.  Y.  347)     529,  628,  629 

Bussy  V.  Donaldson  (4  Dallas,  206)       26,  619 

Butler  V.  Collins  (12  Cal.  457)  615 

V.  Hicks  (11  Sm.  &  Marsh.  78)         543 

V.  Horwitz  (Sup.  Ct.  U.  S.)  264 

V.  Kent  (19  Johns.  228)  678 

V.  Ladue  (12  Mich.  173)  341 

V.  Mehrling  (15  111.  488)   582,  583,  707 

V.  Mercer  (14  Ind.  479)  530 

V.  Rolfe  (6  Mod.  25)  449 

Butmaa  v.  Hussey  (3  Fairf.  407)  146 

V.  The  Vermont  Central  R.  R.  Co. 

(1  Williams,  500) 

Butterfield  v.  Forrester  (11   East,  60) 


Button  V.  Hudson  River  R.  R.  Co.  (18  N. 
Y.  248) 


663 
102, 
154 

535 


PAGE 

Butts  V.  Collins  (13  Wend.  139,  156)  488 

V.  Edwards  (2  Denio,  164)  47 

Buxton  V.  Lister  (3  Atk.  383)  251,  553 

Byles   V.   Ipswich   Dock   Commissioners 

(33  Eng.  L.  &  E.  455)  665 

Byram  &  McGuire  (3  Head,  Tenn.  530)  5.34 
Byrd  v.  The  State  (2  Barb.  Ark.  175)  484 
Byrket  v.  Monohon  (7  Blackf.  83)  629 

Byrne  v.  Wilson  (15  Irish  Com.  Law,  332)  95 
Byrnes  i;.  Rich  (5  Gray,  518)        178,  179,  186 


Cable  V.  Dakin  (20  Wend.  172)    \  582 

Cady  V.  Allen  (22  Barb.  388)  190 

V.  Huntington  (1  N.  H.  138)  611 

Caffe  V.  Bertrand  (1  How.  App.  Cas.  224)    .542 
Caffrey  v.  Darley  (6  Vesey,  488,  495)  375 

Cahill  V.  Verner  (2  Irish  Law  [N.  S.]  549)  607 
Calcraft  v.  Earl  of  Harborough  (4  Car.  & 

P.  499)  638 

Caldwell  v.  Brown   (6   Am.   Law  Reg. 
[N.  S.]  752) 
V.  Murphy    (11  N.  Y.  416;   1 

Duer,  233)  648,  691 

V.  Raymond  (2  Abbott's  Pr.  R. 

193)  626 

V.  Reed  (Litt.  Select  Cas.  366)     230 
V.  West  (1  Zabr.  411)  578 

Caledonian   R.   Co.  v.  Cole  (3  Law  T. 

252)  395,  416 

Cal.  Steam  Nav.  Co.  v.  Wright  (6  Cal. 

258)  481 

Call  V.  Allen  (1  Allen,  137)  699 

Callaway  Mining  &  Manufg.  Co.  v.  Clark 

(32  Mo.  305)  72 

Callender  v.  Marsh  (1  Pick.  418,  430)         120 
Calton  V.  Bragg  (15  East,  223 ;  cited  3 

Bing.  361)  276,430 

Calvit  V.  Cloud  (14  Tex.  53)  558 

V.  McFadden  (13  Tex.  324)         66,  297 
Cameron  v.  Boyle  (2  Greene,  Iowa,  154) 

610,  681 

V.  Cameron  (2  Murr.  232)  32 

V.  Wynch  (2  Car.  &  K.  264)         558 

Camfield  v.  Gilbert  (4  Esp.  N.  P.  221)        196 

Camp  V.  Bates  (11  Conn.  487)  440 

V.  Homesley  (11  Ired.  212)  133 

V.  Pulver  (5  Denio,  48)  334 

V.  Western  Union  Tel.  Co.  (1  Mete. 

Ky.  164)  413 

Campbell  v.  Arnold  (1  Johns.  511)  143 

V.  Brown  (19  Penn.  359)  670 

V.  Chamberlain  (10  Iowa,  337) 

453,  454,  529 
V.  Fleming  (1  Ad.  &  E.  40)  325 
V.  Gates  (10  Penn.  483)  234 

V.  Lewis  (3  Barn,  &  Aid.  392) 

209,  687 
V.  Woodworth  (26  Barb.  648)      615 
Canal  Trustees  v.  Lynch  (5  Gilman,  521)   246 
V.  The   City   of  Chicago 

(12  111.  403)  664 

Canandaigua   &  Niagara  R.   R.    Co.  v. 

Payne  (16  Barb.  273)  664 

Cannam  v.  Farmer  (2  Car.  &  K.  747)         685 
Cannel  v.  Buckle  (2  P.  Wms.  243)  449 


XXVIU 


TABLE   OF    CASES. 


Canning  t;.  Inhabitants  of  Williamstown 

(1  Cush.  451)  652 

Cannon  v.  lk'j;i;s  (1  McCord,  371)  275 

V.  Folsoni  (2  Iowa,  101)  291,  297,  552 
Canter  y.  Ana.  &  Uccan  Ins.  Co.  (3  Peters, 

307)  108 

Capehart  v.  Carradine  (4  StroWiart,  42)      423 
Capsluuv  V.  Fcnnell  (12  Ala.  780)  656 

Carey  v.  Berk.sliire  K.  11.  Co.  (1  Cush. 

475)  99,  644 

V.  Brooks  (I  Hill,  S.  C.  365)  153 

Carhart  v.  The    Auburn    Gas-light    Co. 

(22  Barb.  297)  154 

Carland  w.  City  of  New  Orleans  (13  La. 

Ann.  43)  242 

V.  Cunningham  (37  Penn.  232)  83 
Carlisle  v.  Holton  (3  La.  Ann.  48)  154,  535 
Carman  v.  Franklin  Ins.  Co.  (6  Watts  & 

S.  155)  488,  508 

Carpenter  v.  Cummings  (40  N.  H.  158)  606 
V.  Doody  (1  Hilton,  465)  592,  610 
V.  Landaff  (42  N.  H.  218)  662 

V.  Lockhart  (1  Ind.  434)  465 

V.  Northfield  Bank  (39  Vt.  46)  262 
V.   Oswego  &  Syracuse  R.  R. 

Co.  (24  N.  Y.  655)  663 

V.  Sheldon  (5  Sandf.  77)  642 

w.  Stevens  (12  Wend.  589)  579 

Carpentier  v.  Atherton  (4  Am.  Law  Reg. 

[N.  S.]  225;  25  Cal.  564)  262 

Carr  v.  Moore  (41  N.  H.  131 )       320,  333,  696 
Carrell  v.  Municipality  No.  2  (7  La.  Ann. 

632)  516 

Carrine  v.  Westei-field  (3   A.  K.  Marsh. 

331 )  143 

Can-is  v.  Ingalls  (12  Wend.  70)  158 

Carter  v.  Feland  (17  Mo.  383)  542 

V.  Streator  (4  Jones  L.  N.  C.  62)      572 

V.  Wallace  (2  Tex.  206)        40,  48,  142 

Cary  v.  Gruman  (4  Hill,  625)  323 

Casco  Bank  v.  Keene  (53  Me.  103)  277 

Case  V.  Boughton  (11  Wend.  106)  418 

V.  Hair(24  Wend.  102)  331 

V.  Shepherd  (2  Johns.  Cas.  27)  144 

Cash  V.  Kennion  (11  Ves.  314)  265 

Cassin  v.  Marshall  (18  Cal.  689)  542 

Castle  V.  Pierce  (2  Root,  Conn.  294)  179 

Caswell  V.  Coare  (1  Taunt.  566  ;  2  Taunt. 

107)  321,32.3,511 

y.  Wendell  (4  Mass.  108)  178,186 
Catawissa  R.  R.  Co.  v.  Armstrong   (49 

Penn. 186)  535 

Cate  V.  Nutter  (4  Fost.  108)  663 

Catherine,  The,  v,  Dickinson    (17  How. 

170)  536,  537 

Catherwood  v.  Caslon  (1  Car.  &M.  431)     112 
Catlin  V.  Ware  (9  Mass.  218)  141 

Cattlin  V.  Hills  (8  C.  B.  123)  535 

Caulkins,   Ex'r  of  Albee,  v.  Harris    (9 

Johns.  324)  174 

Cavender  v.  Smith  (8  Iowa,  360)  130 

Central   Bridge  Corporation  v.   City   of 

Lowell  (15  Gray,  106)  668 

Central  R.  R.  Co.  v.  Moore  (4  Zabr.  824)  154 
Chace  v.  Hinman  (8  Wend.  452)  350 

Chadwick  v.  Lamb  (29  Barb.  518)  558 

Chamberlain  v.  Bagley  (UN.  H.  234)        479 
u.  Belier  (18N.  Y.  115)  347 


PAGE 

Chamberlain  v.  Farr  (23  Vt.  265)  313 

V.  Gaillard  (26  Ala.  .504)         684 
^  I'.  McCallister  (6  Dana,  Ky. 

352)  230 

V.   Porter  (9   Minn.  260)      112, 
534,  677 
Chamberlainc  v.  Chester  &  B.  R.  Co.  (1 

Exch.  870)  661 

Chamberlin  v.  Shaw  (18  Pick.  278)  563 

V.  Scott  (33  Vt.  80)  238,  244, 

245 

Chambers  v.  Bedell  (2  Watts  &  S.  225)        142 

V.  Donaldson  (11  East,  66)  144 

V.  Fort  Bend  County  (14  Tex. 

34)  235 

V.  Goldwin  (9  Vesey,  271)  439 

Champion   v.  Vincent  (20    Tex.  811)         48, 

516,  529 
Champlin  v.  Rowley  (18  Wend.  187)  237,  239 
Chandler  v.  Allison   (10   Mich.  460;  11 

Mich.  542)  86,  101 

V.  Doulton   (34  L.  J.   [N.  S.] 

Exch.  89)  47 

V.  Spear  (22  Vt.  388)  570 

Chandos  v.  Com.  of  Inland  Rev.  (20  Law 

Jour.  [N.  S.]  Exch.  269)  685 

Chanter  v.  Hopkins  (4  Mees.  &  W.  399)  328 
Chapel  V.  Bull  (17  Mass.  213)  168,  178,  186 
Chapin  v.  Boston  &  Providence  R.  R.  Co. 

(6  Cush.  422)  663 

V.  Norton  (6  McLean,  500)  76 

Chapman  v.  Albany  &  Schenectady  R. 

R.  Co.  (10  Barb.  360)  664 

V.  Dodd  (10  Minn.  350)  707 

V.  Groves  (8  Blackf.  308)  667 

v.  House  (2  Strange,  1140)  689 

V.  Rawson  (10  Jur.  287;  8  Q. 

B.  673)  149,685 

r.  Ross  (12  Leigh,  565)  352 

V.    Thames    Man'fg.    Co.    (13 

Conn.  269)  45 

V.  Thornburgh  (17  Cal.  87)         608 

Charles  r.  Altin  (15  C.  B.  46)  375 

Chase  v.  Allen  (13  Gray,  42)        457,  478,  479 

V.  Blaisdell  (4  Minn.  90)  542 

V.  Hogan  (6  Bosw.  431 )  236 

V.  Monroe  (10  Fost.  427)  588 

V.  N.  Y.  Central  R.  R.  Co.   (24 

Barb.  273)  147 

V.  Sutton   Man'fg.    Co.    (4    Cush. 

152)  663 

Chatfield  v.  Wilson  (27  Vt.  670)  147 

Chatterton  y.  Fox  (5  Duer,  64)  177 

Cheddick's  Ex'r  v.  Marsh)  1  Zabr.  463) 

463,  472 
Cheetham  v.  Tillotson  (5  Johns.  430)  686 

Chenowith  v.  Hicks  (5  Ind.  224)  707 

Chesapeake  &  Ohio  Canal  Co.  v.  Union 

Bank  of  Georgetown  (4  Cranch  C.  C.  75)  664 
Chesterman  v.  Lamb  (2  Ad.  &  E.  129)  322 
Cheveley  v.  Morris  (2  W.  Black.  1300)  681 
Chicago,  City  of,  v.  Major  (18  111.  349)  647 
Chicago,  Burlington  &  Quincy  R.  R.  Co. 

V.  Dewey,  Adm'x  (26  111.  255)  534 

Chicago,  Burlington  &  Quincy  R.  R.  Co. 

V.  Hazzard  (26  111.  373)  534 

Chicago  and  R.  I.  R.  R.  Co.  v.  Morris  (26 
111.  400)  647 


TABLE    OF    CASES. 


XXIX 


Chicago  and  R.  I.  R.  R.  Co.  v.  McKean 

(40  111.218)  707 

Chicago  and  R.  I.  R.  R.  Co.  r.  Ward  (16 

111.  522)  213 

Chica-io  South  Branch  Dock  Co.  v.  Dun- 
lap  (32  111.  207)  624 
Chidscv  V.  Canton  (17  Conn.  475)          92,  669 
Child  V.  Eureka  Powder  Works  (44  N.  H. 

354)  351 

Chiles  V.  Drake  (2  Metcalf,  Ky.  146)  529, 

538 
Chilliner  v.  Chilliner  (2  Ves.  Sr.  528)  449 
Chilton  V.  Whiffin  (3  Wilson,  17)  274 

Chilvers  v.  Greaves  (5  Man  &  Gr.  578)        707 
Chinery  v.  Viall  (5   Hurl.  &  N.  288;  29 
L.  J.  [N.  S.]  Exch.  180 ;  2  L.  T,  R.  [N. 
S.]  466)  556 

Chinn  v.  Blanchard  (6  La.  Ann.  66)  129 

Chinnock  v.  The  Marchioness  of  Ely  (2 

Hem.  &  Mil.  220)  9 

Chipman  v.  Emeric  (5  Cal.  239)  671 

V.  Hibberd  (6  Cal.  162)         560,  625 
Chisora    V.   School   Directors    (19  Ohio, 

289)  686 

Christian,  County  of,  v.  Ovei-holt  (18  111. 

223)  77 

Christian  i;.  Lord  Kennedy  (1   Murr.  R. 

428)  527 

Churchill  v.  Hunt  (3  Denio,  321)         349,  351 
Cicely  v.  State  of  Mississippi  (13  Smed.  & 

M.  202)  707 

Cincinnati  and  Chicago  Air  Line  R.  R. 

Co.  V.  Rodg-ers  (24  Ind.  103)  229 

Cincinnati,  City  of,  v.  Evans  (5  Ohio  St. 

594)  87 

Claggett  V.  Richards  (45  N.  H.  360)  454 

Clapp  V.  Hudson   River  R.  R.   Co.  (19 

Barb.  461 )  707 

V.  Reynolds  (2  Johns.  Cas.  409)       463 
t'.  Thomas  (7  Allen,  188)  588 

Clare  v.  Maynard  (7  Car.  &  P.  741  ;  6  Ad. 

&E.  519)  321 

Clark,  Ex'r,  v.  Gilbert  (26  N.  Y.  279)         238 
Clark  V.  Baird  (9  N.  Y.  183)  697 

V.  Barlow  (4  Johns.  183)  43" 

V.  Beales  (15  Ark.  452)  528,  681 

V.  Brown  (18  Wend.  213,  229)  89 

V.  Bush  (3  Cow.  151)  482,  484,  485 

V.  Carrington  (7  Cranch,  308,  332)  347, 

365 
V.  City  of  Utica  (18  Barb.  451)  664 

V.  Dales  (20  Barb.  42)  292 

V.  Fisher  (1  Paige,  171)  694 

V.  Hallock  (16  Wend.  607)  609 

V.  Hampstead  (19  N.  H.  365)  663 

V.  Huber  (20  Cal.  196)  129 

r.  Jones  (I  Denio,  516)  248,476 

V.  Kay  (26  Ga.  403)  457 

V.  Marsiglia  (1  Denio,  317)  231 

V.  Mayor,   &c.  of  N.  Y.   (3  Barb. 

288  ;  4  N.  Y.  [4  Comst.]  338)     77, 
245,  416 
V.  Miller  (47  Barb.  38)  586,  587 

V.  Miller  (4  Wend.  628)  373 

V.  Moody  (17  Mass.  145)  386 

V.  Moore  (3  Mich.  55)  219 

V.  Newsom  (1  Exch.  131)  525 

».  Parr  (14  Ohio,  118)  182 


Clark  V.  Pinney  (7  Cow.  681,  689)      268,  293, 

296 
V.  Smith  (9  Conn.  380)  603 

V.  Smith  (14  Johns.  326)  237 

V.  Spence  (10  Watts,  335)  692 

V.  The  State  (7  Blackf.  570)  690 

V.  The  Town  of  Say  brook  (21  Conn. 

313)  664 

V.  Whitaker  (19  Conn.  320)  568 

V.  Wildridge  (5  Ind.  176)  491 

Clarke  v.  Birmingham  &  Pittsburg  Bridge 

Co.  (41  Penn.  147)  121 

V.  Meigs  (10  Bosw.  337)  388 

V.  Scott  (2  La.  Ann.  907)  53 

Clayard  v.  Dethick  (12  Q.  B.  439)  539 

Clcgg  i;.  Dearden  (12  Q.  B.  576)  155 

Clement  v.  Cash  (21  N.  Y.  253)  466 

V.  Lewis  (3  Brod.  &  B.  297)  705 

V.  Little  (42  N.  H.  563)  607 

r.  Milner  (3Esp.  95)  156 

Clements  v.  Glass  (23  Ga.  395)  678 

Clendaniel  v.  Tuckennan  (17  Barb.  184)     400 

Cleveland  v.  Union  Ins.  Co.(8  Mass.  308)  278 

Clifford  V.  Kimball  (39  Me.  413)  610 

V.  Richardson  (18  Vt.  620)  417 

Clifton  V.  Hooper  (6  Q.  B.  468)  593 

Close  V.  Field  (13  Texas,  623)  434 

Clossman  v.  La  Coste  (28  Eng.  L.  &  E. 

140)  112,  251 

Cloud  V.  Smith  (1  Texas,  102)  433 

Clowes  V.  Hawley  (12  Johns.  484)  565 

Clunnes  v.  Pezzy  (1  Camp.  8)  543 

Coates  V.  Cheever  (1  Cow.  460)  140 

Cobb  V.  Titus  (10  N.  Y.  198)  370 

Coby  V.  Kock  (3  La.  Ann.  439)  652 

Cochran  v.  Ammon  (16  111.  316)  638 

V.  Miller  (13  Iowa,  128)  529 

V.  Winburn  (13  Texas,  143)  578 

Cockburn  v.  Alexander  (6  C.  B.  791 )  426 

Cockerell?;.  Barber  (16  Ves.  461)  261 

Coe  V.  Peacock  (14  Ohio  St.  187)  593 

Coffee  V.  Meigs  (9  Cal.  363)  220 

Coffin  V.  Coffin  (4  Mass.  1)  533,  626 

Coffinanv.  Huck  (19Mo.  435)  180 

Cogwell's  Heirs  i;.  Lyon  (3  J.  J.  Marsh. 

38)  217 

Coil  V.  Wallace  (4  Zabr.  291 )  422 

Colby  V.  Sampson  (5  Mass.  310)  601 

Colden  v.  Knickerbacker  (2  Cow.  31)  689 

Cole  V.  Clark  (3  Wis.  323)  242 

v.  Connolly  (16  Ala.  271)  577 

V.  Fisher  (11  Mass.  137)  105 

V.  Patterson  (25  Wend.  456)  209 

V.  Sprowl  (35  Me.  161)  114 

r.  Swanston  (1  Cal.  51)  677 

V.  Tucker  (6  Tex.  266)  528,  530 

Coleman  v.  Ballard's  Heirs  (13  La.  Ann. 

512)  191 

V.  Southwick  (9  Johns.  45)  530 

Collard  V.  Southeastern  R.  R.  Co.  (7  Hurl. 
&  N.  79  ;  30  L.  J.  [N.  S.]  Exch.  393  ; 
4  L.  T.  R.  [N.  S.]  410)  »2,  401 

Collen  V.  Wright  (7  Ellis  &  B.  301  ;  8  Ellis 

&  B.  647)  392 

ColleviUe  v.  Jones  (11  C.  B.  712)  91 

Collins  V.  Albany  &  Schenectady  R.  R. 

Co.  (12  Barb.  492)  707,710 

V.  Blantern  (2  Wills.  341,  349)  30 


XXX 


TABLE    OF   CASES. 


PAGE 

Collins  V.  Cave  (6  Hurl.  &  N.  Exch.  131  ; 

Affix-  4  Hurl.  &  N.  225)  6r)3 

V.  Collins  (2  Burr.  820)  449 

V.  Shaw  (8  Ind.  516)  683 

r.  Todd  (17  Mo.  537)  639 

V.  Woodruff  (4  P]iio:lish,  463)  424 

Columbus,  The,  v. (1  Abbott's  Adm. 

37,  97)  397,  547 

Colville  V.  Besley  (2  Denio,  139)  359 

Colvin  V.  Corwin  (15  Wend.  557)  248 

Cohvill  V.  Lawrence  (38  Barb.  643)  480 

Commercial  Bank  of  Buffalo  v.  Kortright 

(22  Wend.  348)  420 

Commercial  Bank  of  Pennsylvania  v. 
Union  Bank  of  New  York  (11  N.  Y. 
203;  19  Barb.  391)  377 

Commissioners  of  Kensington  v.  Wood 

(10  Pcnn.  93)  154 

Commonwealth    v.  Allen  (30  Penn.  49)     610 
V.    Contner    (18    Penn. 

439)  592 

V.  Crevor  (3  Binn.  121, 

123)  434 

V.  Lightfoot  (7  B.  Monr. 

298)  588 

V.  Porter  (10  Mete.  263)     20 
V.  Sessions  of  Norfolk  (5 

Mass.  437)  626 

V.    Stevens     (10     Pick. 

247)  672 

commonwealth  Ins.   Co.  v.  Sennett  (37 

Penn. 205)  220 

Compton  V.  Martin  (5  Rich.  L.  14)  558 

Comstock  V.  Hutchinson  (10  Barb.  211)      323 

Conardr.  Nicoll  (4  Peters,  291)  616 

V.   The   Atlantic   Co.  (1   Peters, 

386)  616 

V.  The  Pacific  Ins.  Co.  (6  Peters, 

262,  282)  515,  525 

Concanen  v.  Lethbridge  (2  H.  Bl.  36)  602 

Concord  R.  R.  Co.  v.  Greely  (3  Foster  N. 

H.  237)  662 

Condon  v.  The  Gt.  Southern  &  Western 

R.  Co.  (16lr.  LawR.  [N.  S.]  415)  647 

Conger  v.  Weaver  (20  N.  Y.  140)         196,  197 
Connah  v.  Hale  (23  Wend.  462)  641 

Connecticut  v.  Jackson  (1  Johns.  Ch.  13)  439 
Conn.  River  R.  R.  Co.  v.  Clapp  (1  Cush. 

559)  685 

Connelly  v.  McNeil  (2  Jones  L.  51 )  709 

Conner  v.  Cockerill  (4  Cr.  C.  C.  R.  3)         682 

V.  Shepherd  (15  Mass.  164,  167)      140 

Connor  t;.  Hillier  (11  Rich.  L.  S.  C.  193)    566 

682 
583 
311 

711 
694 

539 

267 


Connoss  v.  Meir  (2  E.  D.  Smith,  314) 
Conroy  v.  Flint  (5  Cal.  327) 
Converse  v.  Prettvman  (2  Minn.  229) 
Cook  V.  Beal  (1  Ld.  Raym.  176;    S.  C.  3 
Salk.  115) 
V.  Brockway  (21  Barb.  331) 
V.  Champlain  Transp.  Co.  (1  Denio, 
91)  159 

V.  Clark  (4  E.  D.  Smith  213) 
V.  Commissioners   of  Hamilton    (6 

McLean,  612)  76 

V.  Ellis  (6  Hill,  466)  524,  530 

V.  Garza  (9  Texas,  358)  528 

V.  Hartle  (8  Car.  &  P.  568)         544,  568 
V.  Loomis  (26  Conn.  483)  545,  568 


PAGE 

Cook  v.  Moseley  (13  Wend.  277)  501 

V.  Tousey  (3  Wend.  444)  453,  482 

Cooke  V.  England  (27  Md.  14)  112 

V.   Munstone    (4   Bos.   &  P.   351, 

355)  289 

V.  O'Brien  (2  Cr.  C.  C.  R.  17)  628 

V.  Whorwood  (2  Saund.  337)  247 

V.  Woodrow  (5  Cranch,  13) 

Cooley  V.  Rose  (3  Mass.  221)  275,  445 

Coolidge  V.   Brigham    (1    Mete.    547;    5 

Mete.  68)  332 

V.  Choate  (11  Mete.  79)  619 

Coombe  v.  Sansom  (1  Dowl.  &  Ry.  201)     565 

Cooper  V.  Newman  (45  N.  H.  339)  556 

V.  Shepherd  (3  C.  B.  266)  575 

V.  Young  (22  Ga.  269)  396,  402 

Coopers  v.  Wolfe  (15  Ohio  St.  523)  593 

Copeland  v.  The  New  Eng.  Mar.  Ins.  Co. 

(2  Mete.  432)  278 

Copper  Co.  v.  Copper  Mining  Co.  (33  Vt. 

92)  80, 305 

Coppin  V.  Braithwaite  (8  Jur.  875)  223 

Corbett  v.  Brown  (5  Car.  &.  P.  363)  653 

V.  Packington    (6    Barn    &    Cr. 

268)  38 

Corcoran  v.  Judson  (24  N.  Y.  106)  453 

Corder  i-.  Martin  ( 1 7  Mo.  41 )  453 

Cordis  V.  Sager  (14  Me.  475)  668 

Corgan  u.  Frew  (39  111.  31)  445 

Cormack  v.  Gillis  (7  East,  480)  334,  492 

Cornell  v.  Jackson  (3  Cush.  506)        183,  189, 

658 
Corner  v.  Shew  (4  Mees.  &  W.  163)  686 

Comes   V.  Harris    (1    N.  Y.   [1   Comst.] 

223)  152 

Corning  v.   Coming    (6  N.  Y.  [2  Seld.] 

97)  639 

Cornwall  v.  Gould  (4  Pick.  444  357 

Corporation  of  Hythe  v.  East   (1   Law 

Rep.  Eq.  620)  9 

Cort  V.  The  Ambergate  R.  Co.  (17  Q.  B. 

127)  315 

Cortelyou  v.  Lansing  (2  Caines  Cas.  200, 

215)  296,418,548 

Corwin  v.  Wallace  (17  Iowa,  374)  242 

y.  Walton  (18  Mo.  71)  530 

Cory  V.  Silcox  (6  Ind.  39)  48,  146 

Coryell  v.  Colbaugh  (Coxe  77)  229 

Coster  V.  New  Jersey  R.  R.  Co.  (3  Zabr. 

227  ;  4  lb.  730)  664 

Costigan  v.  Mohawk  &  H.  R.  R.  Co.  (2 

Denio,  610)  204,231,405,490,512 

Cotes  V.  The  City  of  Davenport  (9  Iowa, 

227)  663 

Cotheal  v.  Talmage,  9  N.  Y.   [5   Seld.] 

551)  466,480 

Cotterell  v.  Jones  (11  C.  B.  713)  93,  252,  655 
Cotterill  v.  Hobby  (4  Barn.  &  C.  465)  156 
Coulter's  Case  (5  Coke,  30)  137,  489 

Councer  v.   Steam  Tug  A.  L.  Griffin  (5 

Am.  Law  Reg.  [N.  S.]  45)  266 

Countess  of  Rutland's  Case  (1  Roll.  Abr. 

15)  568 

County,  The,  v.  Leidy  (10  Barr,  45)  6^2 

Course  v.  Stead's  Executors  (4  Dall.  22)  683 
Courser  v.  The  Vermont  Central  R.  R. 

Co.  (25  Vt.  476)  663 

Courtney  v.  Baker  (3  Denio,  27)  669 


TABLE   OF   CASES. 


XXXI 


PAGE 

Covell  V.  Weston  (20  Johns.  414)  119 

Coventry  v.  Barton  (17  Jolms.  142)  391 

Covert  V.  Gray  (34  Howard's  Pr.  K.  450)   111, 

529 
Cowell  V.  Edwards  (2  Bos.  &  P.  268)  308 

Coweta  Falls  Manuf.  Co.  v.  Rogers  (19 

Ga.  417)  76 

Cowing  V.  Cowing  (33  L.  J.  [N.  S.]  Prob. 

149)  634 

Cowley  V.  Davidson  (10  Minn.  392)  44 

Cox  V.  Robinson  (2  Robins  La.  313)  454,  643 

V.  Sprigg  (6  Md.  274)  52 

V.  Vanderkleed  (21  Ind.  164)  638 

V.  Walker  (7  Car.  &  P.  744  ;  S.  C.  6 

Adol.  &  E.  523)  322 

Cox's  Adm'rs  v.  Henry  (32  Penn.  18)        177, 

202 
Cox's  Heirs  v.  Strode  (2  Bibb,  273)  181 

Crabtree  v.  Kile  (21  111.  180)  324 

Crafts  V.  Wilkinson  (4  Q.  B.  74)  444 

Craig  V.  Craig  (5  Rawle,  91)  363 

V.  McHenry  (35  Penn.  120)  566 

V.  Rochester  City  &  Br.  R.  R.  Co. 

(39  Barb.  494)  663 

Grain  v.  Beach   (2  Barb.  120;  S.  C.  on 

appeal,  2  Comst.  86)  248 

V.  Petrie  (6  Hill,  522)  65 

Cram  v.  Bailey  (10  Gray,  87)  558 

V.  Dresser  (2  Sandf.  120)  502,  505 

Crane  v.  Dygert,  SheriflF  (4  Wend.  675)     433 

V.  Hardman  (4  E.  D.  Smith,  339)     501 

V.  Thayer  (18  Vt.  162)  434 

Crawford  v.  Andrews  (6  Ga.  244)  600 

V.  Morris  (5  Grattan,  90)  688 

Craythorne  v.  Swinbnrne  (14  Ves.  159)      183 

Creed  v.  Fisher  (26  Eng.  L.  &  E.  384;  9 

Exch.  472)  707 

Crenshaw  v.  Smith  (5  Munf.  415)  182 

Crews  V.  Dabney  (1  Littell,  278)  655 

Criner  v.  Pike  (2  Head,  Tenn.  398)  640 

Crippen  v.  Thompson  (6  Barb.  532)  351 

Crisdee  v.  Bolton  (3  Car.  &  P.  240)  468 

Crist  V.  Armour  (34  Barb.  378)  291 

Crittenden  v.  Posey  (1  Head,  Tenn.  311)  332 
Crockett  v.  City  of  Boston  (5  Cush.  182)  663 
Crockford  v.  Winter  (1  Camp.  129)  431 

Crommelin   v.  Marquis   of   Donegall   (3 

L-ish  Law  [N.  S.].  434)  346 

Crompton  v.  Ward  (1  Strange,  429)  593 

Crooker  f.  Bragg  (10  Wend.  260)  45 

Crooks  V.  Moore  (1  Sandf.  297)  315 

Crookshank  v.  Mallory  (2   Greene,  Iowa, 

257)  242 

Crosby  v.  Derby  Gas-light  Co.  (3  Mylne 

&  Cr.  428)  674 

w.  Leng  (12  East,  409)  539 

y.  Watkins  (12  Cal.  85)  291 

Cross  V.  The  U.  States  (1  Gallison,  26)       671 

Crouch  V.   Great  Northern    R.    Co.    (11 

Exch.  742)  407,  531 

V.  London  &  N.  W.  Railway  Co. 

(2  Car.  &  K.  789)  620 

V.  Miller  (5  Humph.  586)  508 

Croucher  v.  Oakman  (3  Allen,  185)  390 

Crowninshield  v.  Robinson  (1  Mason,  93)  506 

Cruger  v.  The  Hudson  River  R.  R.  Co. 

(12N.  Y.  190)  664 

Crump  V.  Ficklin  (1  Patt.  &  H.  201)  341 


PAGE 

Cuddee  v.  Rutter  (5  Vin.  Abr.  540)  313 

Cuddy  17.  Major  (12  Mich.  368)  219 

Culver  V.  Avery  (7  Wend.  380)  226,  656 

V.  Blake  (6  B.  Monr.  528)  508 

Cumberland   Coal  &  Iron  Co.  v.  Tilgh- 

man  (13  Md.  74)  581 

Cumberland,  The    (5  L.  T.  R.    [N.  S.] 

496)  281 

Cummerford  v.  McAvoy  (15  111.  311)  629 

Gumming  v.  Hackley  (8  Johns.  202)  353,  354, 

355,  360,  367 
Cummins  v.  Spruance  (4  Harring.  Del. 

315)  536 

Cunningham  v.  Dorsey  (6  Cal.  19)       80,  219, 

416 
V.  Steamboat  Low-water  (28 

Mo.  338)  390 

Curran  v.  The  Warren  Chemical  &  Manf  g 

Co.  (36  N.  Y.  153)  646 

Curtis  V.  Brewer  (17  Pick.  513)  476 

V.  Groat  (6  Johns.  168)  560 

V.  Hannay  (3  Esp.  82)  321,  324 

V.  Innerarity  (6  How.  146)  260 

V.  Rochester  &  Syracuse  R.  R.  Co. 

(18N.  Y.  534)  677 

V.  Ward  (20  Conn.  204)  573 

Curtiss  y.  Hoyt  (19  Conn.  154)  143 

V.  Lawrence  (17  Johns.  Ill)  681 

V.  Rochester   &    Syracuse   R.  R. 

Co.  (20  Barb.  282;  afF'd  18 

N.  Y. 534)  90,118 

Gushing  v.  Drew  (97  Mass.  445)  718 

v.  Gore  (15  Mass.  69)  351 

V.  Longfellow  (26  Me.  306)  625 

Cutler  V.  How  (8  Mass.  257)  232 

V.  Johnson  (8  Mass.  266)  232 

V.  Southern  (1  Saund.  116)  343 

Cutter  V.  Fanning  (2  Iowa,  580)  545 

y.'Waddingham  (33  Mo.  269)  129 

Cutter's  Adm'x  v.  Powell  (6  T.  R.  320)      236 

Cutting  V.  Cox  (19  Vt.  517)  143 

V.  G.  T.  R.  R.  Co.   (13  Allen, 

381)  717 


D. 


Dabney  v.  Catlett  (12  Leigh,  383,  634)       352 
Dabovich  v.  Emeric  (12  Cal.  171)  296 

Dagg  V.  Penkevon  (Cro.  J.  70)  671 

Daguerre  v.  Orser  (15  Abbott,  113)  38 

Daily  V.  Litchfield  (10  Mich.  29)  465 

Dain  v.  Wycoff,  (7  N.  Y.  [3   Seld.]  191) 

529,  633,  634 
Dakin  v.  Williams  (17  Wend.  447;    22 

Ibid.  201 )  473,  475 

Dalby  v.  India  &  London  Life  Assurance 

Co.   (15  C.  B.  365;  28  Eng.  L.  &  E. 

312;   18  Jur.  1024)  288,  490 

DaUam  v.  Fitler  (6  Watts  &  S.  323)  606, 

641 
Dalrymple  v.  Whitingham  (26  Vt.  345)  663 
Daly  V.  Van  Benthuysen  (3  La.  Ann.  69)  630 
Dame  v.  Kenny  (5  Post.  318)  630 

Damon  v.  Reading  (2  Gray,  274)  663 

Dana  v.  Fiedler  (12  N.  Y.  [2  Kern.]  40; 

1  E.  D.  Smith.  463)      291,  313,  433 
V.  Sessions  (46  N.  H.  509)  119,  513 


XXXll 


TABLE    OF    CASES. 


PAGE 

Dana  v.  Tucker  (4  Johns.  487)  711 

Danfbrth  v.  rratt  (9  Ciish.  318)  602 

V.  Walker  (37  Vt.  239)  245 

Daniel  v.  Judy  (14  ]}.  Monr.  393)  682 

Daniels  v.  Hates  (2  Greene,  Iowa,  151)        491 
V.  Brown  (34  N.  11.  454)  146 

V.  Ward  (4  Minn.  168)  458 

Danville  L.  &  N.  Turnpike  Co.  v.  Stew- 
art (2  Met.  Kv.  119)  707 
D'Arcy  v.  Lvle'(5  liinn.  441)    '                     391 
Darling  v.  Banks  (14  111.  46)                 628,  630 
Darnell  v.  Williams  (2  Stark.  166)               267 
Davenport  y.  Wells  (1  Iowa,  598)               268 
V.  Wells  (3  Iowa,  242)               297 
David  V.  Conard  (1  Greene,  Iowa,  336)      681 
Davidson  v.  Edgar  (5  Tex.  492)                    242 
V.  Gunsolly  (1  Mich.  388)             558 
V.  Gvvynne  (12  East,  381)             512 
Davies  v.  Jenkins  (11  Mees.  &  W.  755)  27,  34 
V.  Mann  (10  Mees.  &  W.  546)  154,  538 
V.  Penton  (6  Barn.  &  C.  216)           468 
V.  Underwood  (2  Hurl.  &  N.  570)    211 
V.  Williams  (10  Q.  B.  725)               633 
Davis  V.  Barrington  (10  Fost.  517)              242 
V.  Burton  (52  Penn.  9)                       261 
'            V.  Chapman  (3  Scott  N.  R.  238)        110 
V.  Cincinnati  H.  &  D.  R.  R.  Co.  (1 

Disney,  23)  401,  402 

V.  Crow  (7  Blackf.  129)  582 

V.  Dickey  (23  Ala.  848)  319 

V.  Fish  (1  Greene,  Iowa,  407)    102,  240 
V.  Freeman  (10  Mich.  188)  480 

V.  Garrett  (6  Bing.  716)  98,  378 

V.  Harding  (3  Allen,  302)  583 

V.  Harrison  (2  J.  J.  Marsh.  189)       267 
V.  Kendall  (2  R.  I.  566)  47 

V.  Lanier  (2  Jones  L.  [N.  C]  307)    260 
V.  Mason  (4  Pick.  156)  685 

V.  Maxwell  (12  Met.  286)  238 

r.  Nest  (6  Car.  &  P.  167)  642 

V.  Northwestern  R.  Co.  (4  Jur.  [N. 

S.]  1303)  402 

V.  Oswell  (7  Car.  &  P.  804)  544 

V.  Shields  (24  Wend.  322)  292,  297 

V.  Slagle  (27  Mo.  [6  Jones]  600)       422 
V.  Smyth  (8  Mees.  &  W.  399)  431 

V.  Talcott  (14  Barb.  611  ;  12  N.  Y. 

184)  72,77,133,235 

Dawes  v.  Winship  (5  Pick.  97)  434 

Dawson  v.  Morgan  (9  Barn.  &  C.  618)       277, 

362 

Day  V.  Perkins  (2  Sandf.  Ch.  359)  296 

V.  Porter  (2  Moody  &  R.  151)  682 

V.  Woodworth  (13  How.  363)     107,  109, 

110,  113,  528,  529,  673,  684 

Dayton  v.  Hatch  (1  Disney,  84)  418 

Dean  v.  Mason  (20  How.  U.  S.  198)  674 

V.  Peel  (5  East,  45)  633 

V.  Ritter  (18  Mo.  182)  405 

V.  Roesler  (1  Hilt.  420)  177 

V.  Vaccaro  (2  Head  [Tenn.],  488)      395 

V.  White  (5  Iowa,  266)  77 

t'.  Williams  (17  Mass.  417)  440 

Dearborn  v.  Boston,  C.  &  M.  R.  R.  Co.  (4 

Fost.  N.  H.  179)  662,  663 

Deaton  v.  County  of  Polk  (9  Iowa,  594)  662 
De  Bernales  v.  Fuller  (2  Camp.  426)  275,  431 
De  Briar  v.  Minturn  (1  Cal.  450)  707 


Decker  v.   Mathews    (12   N.  Y.  313;    5 

Sandf.  439)  267,  563 

De  Costa  v.  Mass.  Flat  Water  Mining  Co. 

(17  Cal.  613)  118 

Deen  y.  Herrold  (37  Penn.  150)  490,  .505 

De  Forest  v.  Leete  (16  Johns.  122)     68,  190, 

678 
De  Gondouin  v.  Lewis   (10  Adol.  &  E. 

117)  642 

De  Havilland  v.  Bowerbank  (1  Camp.  50) 

275,  431 
Delafield  v.  Union  Ferry   Co.  (10  Bosw. 

216)  534 

Delaney  v.  Stoddart  (1  T.  R.  22)  379 

Delano  v.  Curtis  (7  Allen,  470)  568 

Delavergne  v.  Norris  (7  Johns.  358)  189 

Del.   &  Huds.  Canal   Co.  v.   Torrey  (33 

Penn. 143)  45 

Delaware  &  Raritan  Canal  Co.  v.  Lee  (2 

Zabr.  243)  121 

Delaware  &  Raritan  Canal  Co.  v.  Wright 

(1  Zabr.  469)  114,  155 

Delcol  V.  Arnold  (3  Dall.  333)  70 

Delegal  v.  Navlor  (7  Bing.  460)  265,  564 

De  Mattos  v.  Gibson  (3  L.  T.  R.  [N.  S.] 

121)  453 

Deming  v.  Kemp  (4  Sandf.  147)  505 

Den  V.  Morris  Canal  Co.  (4  Zabr.  587)  664 
Denew  v.  Davirell  (3  Camp.  451)  511 

Denn   ex  dem.   Delatouche  v.  Chubb  (1 

Coxe,  466)  130,  137 

Dennery  v.  Bisa  (6  La.  Ann.  365)  101 

Dennis  v.  Barber  (6  Serg.  &  R.  420)  566 

V.  Cummins  (3  Johns.  Cas.  297)     469 

Denniston  v.  Imbree  (3  Wash.  C.  C.  R. 

402)  440 

Denslow  v.  Van  Horn  (16  Iowa,  476)  423 

Denston  v.  Henderson  (13  Johns.  322)  273 
Depeyster  v.  The  Sun  Mutual  Ins.   Co. 

(17  Barb.  N.  Y.  306)  279 

Derby  v.  Gallup  (5  Minn.  119)  615 

V.  Johnson  (21  Vt.  17)  244 

Dermott  v.  Jones  (23  How.  U.  S.  220;  2 

Wallace.  1 )  235,  238 

Derry  Bank  v.  Heath  (45  N.  H.  524)  453,  454 
De  Rutte  v.  The  N.  Y.  Albany  &  Buf. 

Tel.  Co.  (1  Daly,  547)  410,  413 

De  Tastet  v.  Baring  (11  East,  265)  271 

De  Tastett  v.  Crousillat  (2  Wash.  C.  C. 

R.  132)  376,379 

Devaughn  v.  Heath  (1  Ala.  Sel.  Cas.  523)  532 
De  Vaux  v.  Salvador  (4  Adol.  &  E.  420)  279 
Devendorf  v.  Wert  (42  Barb.  227)  44,  51 

Devereux  v.  Burgwin  (11  Ired.  L.  490)      435, 

441 
Devol  V.  Mcintosh  (23  Ind.  529)  346 

Dewey  v.  Osborne  (4  Cow.  329)  134 

Dewint  v.  Wiltse  (9  Wend.  325)  93,  211,  223 
Dewitt  f.  Morris  (13  Wend.  496)  582 

Dexter  v.  Arnold  (3  Mason,  284)  436 

V.  Spear  (4  Mason,  115)  26 

Dey  V.  Dox  (9  Wend.  129)  292,  299 

Deyo  V.  Van  Valkenburg  (5  Hill,  242)  48 

V.  Waggoner  (19  Johns.  241 )  83 

Dibble  v.  Morris  (26  Conn.  416)  106,  529,  615 
Diblin  v.  Murphy  (3  Sandf.  19)  710 

Dickenson   j;.   Inhabitants   of   Fitchburg 

(13  Gray,  546)  668 


TABLE    OF    CASES. 


XXXUl 


Dickins  i-.  N.  Y.  Central  K.  K.  Co.  (23 

K.  Y. 158) 
Dickinson  v.  Boyle  (17  Pick.  78) 

V.  Branch  Bank  at  Mobile  (12 
Ala.  [N.  S.]  54) 
Dickinson's  Lessee  v.  Nicholson  (2  Yeates, 

281) 
Dickson  V.  Caldwell  (17  Mo.  575) 

V.  Desire  (23  Mo.  151) 
Digby  V.  Atkinson  (4  Camp.  275) 
DiUc'nhack  v.  Jerome  (7  Cow.  294)      548, 
Dillon  V.  N.  Y.  &  Erie  R.  R.  Co.  (1  Hilt. 

2.31) 
Dimmick  v.  Lockwood  (10  Wend.  149) 

174,  191, 
Dinele  v.  Hare  (1  L.  T.  R.  [N.  S.]  38 ;  7 

C.  B.  [N.  S.]  145) 
Dininnv  v.  Fay  (38  Barb.  18) 
Dixon  V.  Caldwell  (15  Ohio  St.  412) 
V.  Clow  (24  Wend.  188) 
V.  Deveridsi-e  (2  Car.  &  P.  109) 
V.  Fawcus''(3  L.  T.  R.  [N.  S.]  693) 
673, 
V.  Smith  (5  Hnrl.  &  N.  450) 
Dixon's  Lessee  v.  Hosack  (cited  4  Dall. 

141) 
Doak  V.  Ex'rs  of  Snapp  (1  Coldw.  Tenn 


180) 


269, 


Dobbs  V.  The  Justices  (17  Ga.  624) 
Dobell  r.  Stevens  (3  Barn.  &  C.  623) 
Dobenspeck  v.  Armel  (11  Ind.  31) 
Dobson  V.  Blackmore  (9  Q.  B.  991)     151, 
Dodd  V.  Norris  (3  Camp.  519) 
Dodge  V.  County  Commissioners  (3  Met. 
381) 
V.  Perkins  (9  Pick.  368)  386, 

V.  Tileston  (12  Pick.  328)        390, 
Doe  V.  Bluck  (3  Camp.  447) 
V.  Davis  (1  Esp.  358) 
V.  Dycball  (8  Barn.  &  C.  70) 
V.  Filliter  (13  Mees»  &  W.  47)      135, 
V.  Hare  (2  DowL  P.  C.  245) 
V.  Warren  (7  Greenl.  48) 
Dolf  r.  Bassett  (15  Johns.  21) 
Dolittlc  V.  Eddy  (7  Barb.  75) 
Donahoe  v.  Emery  (9  Mete.  63) 
Donaldson  v.  Mississippi  &  Missouri  R. 

R.  Co.  (18  Iowa,  280) 
Donnell  v.  Jones  (13  Ala.  490)        65,  89, 
V.  Jones  (17  Ala.  689)      77,  100, 
642,  643, 
I'.  Sandford  (11  La.  Ann.  645) 

Donnelly  i'.  Harris  (41  HI.  126) 
Donnerv  v.  Bisa 

Donohue  v.  Henry  (4  E.  D.  Smith,  162) 
Donovan  v.  The  City  of  New  Orleans  (11 

La.  Ann.  R.  711) 
Doolittlc  V.  Dwight  (2  Mete.  561) 

V.  McCnllough  (7  Ohio  St.  299; 

12  Ohio  St.  360)     244,  245, 

Dorchester  v.  Coventry  (11  Johns.  510) 

140, 
Dorian  v.  East  Brandywine  &  W.  R.  R. 

Co.  (46  Penn.  520)  "' 
Dorman  v.  Ames  (12  Minn.  451) 
Dorsett  v.  Frith  (25  Ga.  537)  552, 

Dorsey  v.  Gassaway  (2  Harr.  &  J.  413)      ^oo 


647 
98 

275 

158 
237 
180 
215 

568 

396 
162, 
225 

320 
591 
542 

48 
51 

677 
630 

129 

291 

587 
656 
429 
153 
634 

668 
4.34 
507 
131 
135 
686 
520 
135 
440 
140 
694 
179 

647 
104 
523, 
680 
638, 
705 
640 
101 
54 

28 
357 

569 

141 

662 

44 

572 

583 


(3 


PAGE 

Dorse_>'  v.  Manlove  (14  Cal.  553)         529,  615 
Dorwin  v.  Potter  (5  Dcnio,  306)  83,  501 

Doss  V.  Doss  (14  L.  T.  R.  [N.  S.]  646)       677 
Doster  v.  Brown  (25  Ga.  24) 
Dothage  v.  Stuart  (35  Mo.  251) 
Dotterer  v.  Bennett  (5  Rich.  L.  295) 
Doty  V.  Miller  (43  Barl).  529) 
Dongherty  v.  Bunting  (1  Sandf.  1) 
Douglass  I'.  Boonsborough  T.  R.  Co.  (22 

Md.  219)  120,  664 

V.  Clarke  (14  Johns.  177)  343 

V.  Kraft  (9  Cal.  562)  552 

V.  McAllister  (3  Crunch,  298)       299 

Dowler  v.  Cushwa  (27  Md.  354) 

Downes  v.  Back  (1  Stark.  318) 

Downey  v.  Burke  (23  Mo.  228) 

Dox  V.  Dey  (3  Wend.  356) 

Doyle  V.  Discon  (97  Mass.  208) 

V.  Keyser  (6  Ind.  242) 
Dovle's  Adm'rs  v.  St.  James'  Church  (7 

Wend.  178) 
Dozier  v.  Jerman  (30  Mo.  216) 
Drake  v.  Hudson   River  R.    R.    Co.    (7 
Barb.  508) 
V.  Mitchell  (3  East,  251) 
Draper  v.  Randolph  (4  Har.  454) 
V.  Williams  (2  Mich.  536) 
Dresser    Manutg.    Co.   v.   Waterston 

Mete.  9) 
Drew  V.  Chamberiin  (19  Vt.  573) 

V.  The  Sixth  Avenue  R.  R.  Co.  (26 

N.  Y. 49) 
V.  Towle'(l0  Post.  531) 
Drexel  v.  Man  (2  Barr,  271,  276) 
Driggs  V.  Dwight  (17  Wend.  71)  93,  678 

Du  Belloix  v.  Lord  Waterpark  (1  Dow.  & 

R.  16)  276 

Duberley  v.  Gunning  (4  T.  R.  651 )     528,  709 
Dubois  V.  Allen  (Anthon's  N.  P.  128)         635 
V.  Delaware  &  Hudson  Canal  Co. 
(4    Wend.  285;     12    Wend. 
334  ;  S.  C.  in  error,  15  Wend. 
87)  240, 

V.  Glaub  (52  Penn.  238)  86, 

Du  Bost  V.  Berestbrd  (2  Camp.  511) 
Duckworth,  Adm'r,  v.  Johnson  (4  Hurl. 

&  Nor.  653) 
Duckworth  v.  Ewart  (2  Hurl.  &  Colt.  129 ; 

33  L.  J.  R.  [N.  S.]  Exch.  24) 
Dudley  v.  Reynolds  (1  Ivans.  285) 
Duffieid  V.  Scott  (3  T.  R.  374) 
V.  Tobin  (20  Ga.  428) 
Duffit  V.  James  (cited,  7  East,  480) 
Dufly  V.  Shocky  (11  Ind.  70) 
Duggins  V.  Watson  (15  Ark.  118) 
Duke  of  Brunswick  v.  Slowman  (8 

317) 
Dumars  v.  Miller  (34  Penn.  319) 
Dumont  v.  Smith  (4  Denio,  319) 
Duncan  v.  Brown  (15  B.  Monroe,  186) 


235 
136 
429 
391 
153 


514 

294 
241 
442,  681 
710 
692 

436 

429 

666 
357 
508 
664 

562 
668 

644 
181 
134 


243 
311 
642 

646 


66 

458 

364 

707 

492,  494 

467 
537 


C.  B. 


604 
177 
678 
628, 
685 

V.  Klinefelter  (5  Watts,  144)  611 

V.  Markley  (1  Harper,  276)   111,  114, 
117,  155 
r.  Spear  (11  Wend.  .54)  570 

V.  The  S.  C.  R.  R.  Co.  (2  Rich. 

L.  613)  97 

Dunckle  v.  Kocker  (11  Barb.  387)  677 


XXXIV 


TABLE    OF    CASES. 


Dunheiic's  Adm'x  i'.  Oliio  Ins.  &  Trust 

Cu.  (1  Disney,  257)  647 

Diinlap  V.  Snyder  (17  Barb.  .561)         637,  69.5 

Diiulop  V.  Grc<,-orv  (10  N.  Y.  241)  467 

V.  Grote  (2  Car.  &  K.  153)  314 

V.  Hi^Kins  (1  H.  of  L.  Gas.  381  ; 

12Jiir.  295)  309 

Dunning  v.  Iluniphrey  (24  "Wend.  31)       453, 

668 
Dunseth  v.  Bank  of  U.  S.  (6  Ohio,  76)  141 
Durell  V.  rritcliard  (1  Law  R.  C.  A.  244)  9 
Durkee  v.  Mutt  (8  Barb.  423)  231,  244,  245 
Durst  V.  Swift  (11  Tex.  273)  479,  480 

Duryee  v.  Webb  (16  Conn.  558,  in  notes)  603 
Dustan  i;.  McAndrew  (10  Bosw.  130)  298,  315 
Dustin  V.  Newcomer  (8  Ohio  St.  49)  182 

Dutch  y.  AVarren  (2  Bfirr.  1010;  1  Str.  406)  293 
Dutro  V.  Wilson  (4  Ohio  St.  101)  150 

Dutton  V.  Pailaret  (52  Penn.  109)  263 

V.  Solomonson  (3  Bos.  &  P.  582)  316 
Duvall  V.  Craig  (2  Wheat.  45,  61)  168,  181 
Dwight  V.  Brewster  (1  Pick.  50)  400 

Dwinel  v.  Brown  (54  Me.  468)  481 

Dyer  v.  Dorsev  (1  Gill  &  J.  440)         202,  476 
V.  Jones'(8  Vt.  205)  236 

V.  Rich  (1  Mete.  180)  318 

E. 

Eagan  v.  Call  (34  Penn.  236)  327 

Eager  i;.  Grimwood  (1  Exch.  61)  632 

Eames   v.  New  Eng.  Woi-sted<.  Co.    (11 

Mete.  570)  92 

Earl  of  Chestei-field  v.  Jansen  (1  Wils. 

286,  295)  231 

Earl  of  Northampton's  Case  (12  Coke,  134)  92 
Earl  V.  Spooncr  (3  Denio,  246)  454,  668 

V.  Van  Alstine  (8  Barb.  630)  670 

Earle  v.  Holderness  (4  Bing.  462)  546 

V.  Sawyer  (4  Mason,  1 )  674 

Early  v.  Garrett  (9  Barn.  &  C.  928)  656 

East  India  Co.  v.  Evans  (1  Vern.  305)  692 
East  Penn.  R.  R.  Co.  v.  Hottenstinc  (47 

Penn.  28)  662 

East  &  W.  I.  Docks  v.  Gattke  (15  Jur. 

261)  8,665 

Easterbrook  v.  Erie  R.  R.  Co.  (51  Barb, 

94)  147 

Eastern  R.  R.  Co.  v.  Benedict  (10  Gray, 

212)  420 

Eastman  v.  Mayor,  &c.,  of  New  York  (5 
Robertson  [N.  Y.  Superior] 
389)  707 

V.  Sanborn  (3  Allen,  594)  535 

Easton  v.  Penn.  &  Ohio  Canal  Co.  (13 

Ohio,  79)  246 

Eaton  V.  Bell  (5  Barn.  &  Aid.  34)  440 

V.  Melius  (7  Gray,  566)  330 

V.  Ogier  (2  Grcenl.  46)  611 

Eby  V.  Schumacher  (29  Penn.  40)       555,  588, 

641 
Eddings  v.  Seabrook  (12  Rich.  L.  [S.  C] 

504)  666 

Eddows  V.  Hopkins  (1  Doug.  376)  686 

Edgar  v.  Boies  (11  Serg.  &  R.  445)  268,  301 
Edgertonw.  Clark  (20  Vt.  264)  130 

V.  Page  (5  Abbott's  Pr.  R.  1)       501 
Edingtonr.  Pickle  (1  Sneed,  122)  242 


PAGE 

Edminson  v.  Baxter  (4  Hayw.  114)  398 

Edmonson  v.  Machell  (2  T.  R.  4)        631,  633, 

634 
V.   Nuttall    (.34   L.  J.  [N.  S.] 
C.  P.  102;  17   C.  B.  [N. 
S.]  280)  557,  569 

Edwards  v.  Edwards  (31  111.  474)  454 

V.  Reynolds   (Hill  &  1).  Supp. 

53)  688 

V.  Todd  (1  Scammon,  463)  512 

V.  Williams  (5  Taunt.  247)  466,  481 

Eisenloln*  v.  Swain  (35  Penn.  107)  89 

Ekins  V.  East  India  Co.  (1  P.  Wms.  395) 

265 
Ela  V.  Card  (2  N.  H.  175)  181 

Eldridge  v.  Mather  (2  N.  Y.   [2  Comst.] 

157)  506 

V.  Rowe  (2  Oilman,  91)  241 

Eliot  V.  Allen  (1  C.  B.  18)  686 

Elizabeth,  The,  (2  Dodson,  403)  390 

Ellery  v.  Cunningham  (1  Mete.  112)  436 

Elliot  i;.  Hughes  (3  F.  &  F.  387)  306 

V.  The  Fitchburg  R.  R.   Co.    (10 

Cush.  Mass.  191)  148 

Elliott  ?;.  Eossell   (10  Johns.  1)  397 

V.  Walker  (1  Rawle,  126)  391 

Ellis  V.  Chinnock  (7  Car.  &  P.  169)  322 

V.  Hamlin  (3  Taunt.  52)  236 

V.  Howard  (17  Vt.  330)  606 

V.  Jeans  (26  Cal.  272)  129 

V.  Port.  &  Roan.  R.  R.  Co.  (2  Ired. 

L.  138)  697 

V.  The  State  (2  Ind.  262)  682 

V.  Willard  (9  N.  Y.  529)  235 

Ellison  V.  Dove  (8  Blackf.  571)  220,  416 

EUmaker  v.  Franklin   Fire    Ins.   Co.   (6 

Watts  &  S.  439)  488 

Elmore    v.    Naugatuck    R.    R.  Co.    (23 

Conn.  457)  396 

Elwood  V.  Christy  (18  C.  B.  [N.  S.]  494)    674 
Emblen  v.  Myers  (6  Hurl  &  N.  54 ;  30  L. 
J.  [N.  S.]  Exch.  71 ;  2  L.  T.  R.  [N.  S.] 
774)  530 

Emblin  v.  Dartnell  (12  Mees.  &  W.  830)     687 
Emerson  v.  Howland  (1  Mason,  45,  51)    231, 

389 
V.  Providence  Hat  Manufg.  Co. 
(12  Mass.  237)  358 

Emery  v.  Smith  (46  N.  H.  151)  254 

Emigh's  Lessee  v.  Rinehart  (1  Yeates,  157, 

cited)  129 

Emmens  v.  Elderton  (13  C.  B.  495)  231 

Empson  v.  Griffin  (11  Adol.  &  E.  186)        687 
Endicott,  petitioner  (24  Pick.  339)  668 

England  v.  Slade  (4  T.  R.  682,  683)  131 

Epperly  v.  Bailey  (3  Ind.  72)  242,  503 

V.  Little  (6  Ind.  344)  683 

Esmond   v.   Van   Benschoten    (12  Bai'b. 

366)  455,  466,  480,  481 

Espy  V.  Jones  (1  Ala.  Sel.  Cas.  454)  422 

Essex  Co.  V.  Pacific    Mills    (14   Allen, 

389)  261,  262 

Estabrook  v.  Smith  (6  Gray,  572)  178 

Estep  V.  Morton  (6  Ind.  489)  506 

Esterly  v.  Cole  (1  Barb.  235)  432 

Etchberry  v.  Levielle  (2  Hilton,  40)  529 

Etheridge  v.  Osborne  (12  Wend.  529)         501     # 
Evans  v.  Brander  (2  H.  Bl.  547)  482,  602 


TABLE    OF   CASES. 


XXXV 


Evans  v.  Chicago  &  E.  I.  K.  K.  Co.  (26 
111.  i89) 
V.  Elliott  (20  Ind.  283) 
V.  Harris  (38  Eng.  Law  &  E.  347) 
V.  Kymer  (1  Barn.  &  Ad.  528) 
V.  Matson  (56  Penn.  54) 
V.  Root  (3  Sekl.  186) 
.  Eveleigh  v.  Stilt's  Adm'rs  (1  Bay,  92) 
Evelyn  v.  Iladdish  (1  Holt,  543;  S.  C.  7 

Taunt.  411) 
Everett  v.  Saltus  (20  Wend.  267,  273) 
Ewing  V.  Blount  (20  Ala.  694) 
V.  lleilly  (34  Mo.  113) 

F. 


220 
695 
627 
563 
637 
383 
180 

214 

512 

552,  568,  573 

346 


Eabbricotti  v.  Launitz  (3  Sandf.  743)  503 

Fagen  v.  Davison  (2  Duer,  153)  206,  678 

Fahy  i;.  North  (19  Barb.  341)  238 

Fail  y.  McRee  (36  Ala.  61)  259 

Fairbanks  v.  Witter  (18  Wise.  287)  106 

Fairchild  v.  California  Stage  Co.  (13  Cal. 

599)  648,  652 

Fairlie  v.  Lawson  (5  Cow.  424)  482 

Fake  v.  Eddy's  Ex'rs  (15  Wend.  76)  445 

Fales  V.  McKeon  (2  Hilt.  53)  320 

Falk  V.  Fletcher  (18  C.  B.  [N.  S.]  403)       547 
Fallon  V.  Manning  (35  Mo.  271)  581 

Fall  R.  Nat'l  Bk.  v.  Biiffinton  (97  Mass. 

498)  277 

Faris  v.  Lewis  (2  B.  Monr.  375)  98,  333 

Farish  v.  Reigie  (11  Gratt.  697)  707 

Farley  v.  Craig  (6  Halst.  262)  209 

Farmer  v.  Hooksett  (8  Fost.  [N.  H.]  244)  663 
Farmers'  Bank  v.  McKee  (2  Barr  [Penn.], 

318)  544 

Farmers'  Turnpike  Co.  v.  Coventry  (10 

Johns.  389)  586 

Farnsworth  v.  Garrard  (1  Camp.  38)  493 

Farr  v.  Newman  (4  T.  R.  621,  633,  648)     607 
Farrand  v.  Bouchell  (Harper,  83)       219,  222, 

435 
Farrant  v.  Olmius  (3  Barn.  &  Aid.  692)  460 
Farrel  v.  Colwell  (1  Vroom,  N.  J.  123)  564 
Farrer  v.  Nightingale  (2  Esp.  Cas.  639)  183 
Farwell  v.  City  of  Cambridge  (11  Gray, 

413)  668 

V.  Price  (30  Mo.  587)  382 

Faulkner  v.  Bartley  (1  English,  155)  600 

Favor  v.  Philbrick  (5  N.  H.  357  401 

Fawcett  v.  Woods  (5  Iowa,  400)  189,  190,  194 
Faxon  v.  Manstield  (2  Mass.  147)  237 

Fay  V.  Bradley  (1  Pick.  194)  440 

V.  Haven  (3  Mete.  109)  52 

Feagin  v.  Beasley  (23  Ga.  17)  324 

Feeter  v.  Heath  (11  Wend.  478)  436 

Feize  V.  Thompson  (1  Taunt.  121)  51 

Fell  V.  McHenry  (42  Penn.  41)  566 

Felton  V.  Fuller  (35  N.  H.  226)  606 

Ferguson  v.  Wilson  (2  Law  R.  Ch.  Ap. 

77)  9 

Fernander  v.  Dunn  (19  Ga.  497)  180 

Fero  V.  Buffalo  &  State  Line  R.  R.  Co. 

(22  N.  Y.  209)  534 

V.  Rnscoe  (4  N.  Y.  [4  Comst.]  162)   629 

Ferrell  v.  Alder  (8  Humph.  44)  213 

Ferrer  v.  Beale  (1  Ld.  Raym.  692)  26 

Ferris  v.  Comstock  (33  Conn.  513)  509 


PAGE 

Ferry  v.  Ferry  (2  Cush.  98)  440 

Fessler  v.  Love  (43  Penn.  313)       80,  291,  488 
Fetter  j;.  Beal  (1  Ld.  Ray.  339;  1  Salk. 

11)  112,  113 

Fettrech  w.  Leamy  (9  Bosw.  510)  114 

Field  j;.  Kinnear  (4  Banks  [Kansas],  476) 

311 
V.  The  Vermont  &  Massachusetts 

R.  R.  Co.  (4  Cush.  150)  663 

Fielder  v.  Starkin  (1  H.  Bl.  17)  321 

Fife  V.  Bousfield  (6  Q.  B.  100)  671 

Finch  V.  Blount  (7  Car.  &  P.  478)       543,  682 
First  Baptist  Church  v.  Sch'y  &  'Proy  R. 

R.  Co.  (5  Barb.  79)  28,  29,  153 

First  Church  in  Boston  v.  City  of  Boston, 

(14  Gray,  214)  668 

First  Parish  in  Shrewsbury  v.  Smith  (14 

Pick.  297)  144 

First  Parish  in  Woburn  v.  County  of  Mid- 
dlesex (7  Gray,  106)  668 
Fish  V.  Dodge  (4  Denio,  311)       155,  681,  694 

248 

328 
670 
291 
483 
433 
444 
366 
212 
528 
546,  561 
493 
200 
481 
333 
325 
272 
432,  537 
668 
668 
671 
533 

446 
642 

581 

89 

480 
453 

68 
399 
67, 
528 

70 


V.  Folley  (6  Hill,  54) 
V.  Roseberry  (22  111.  288) 
V.  Skut  (21  Barb.  333) 
Fishell  V.  Winans  (38  Barb.  228) 
Fisher  v.  Barrett  (4  Cush.  381) 
V.  Bidwell  (27  Conn.  363) 
V.  Dudding  (3  Scott  N.  R.  516) 
V.  Fallows  (5  Esp.  171) 
V.  Goebel  (40  Missouri,  475) 
V.  Patterson  (14  Ohio,  418) 
V.  Prince  (3  Burr.  1363) 
V.  Samuda  (1  Camp.  190) 
Fisher's  Heirs  v.  Kay  (2  Bibb,  434) 
Fisk  V.  Fowler  10  Cal.  (512) 

V.  Hicks  (11  Fost.  [N.  H.]  535) 
V.  Tank  (12  Wis.  276) 
Fiske  V.  Foster  (10  Mete.  597) 
Fitch  V.  Livingston  (4  Sandf.  492) 
V.  Seymour  (9  Mete.  462) 
V.  Stevens  (2  Mete.  505) 
Fitzball  V.  Brooke  (6  Q.  B.  873) 
Fitzgerald  v.  Boulat  (13  La.  Ann.  116) 
V.  Caldwell  (2  Dall.  215  ;  2 
Yeates,  280) 
Fitzgibbon  v.  Brown  (43  Me.  169) 
Fitzhugh  V.  Wiman    (9  N.  Y.   [5  Seld.] 

559) 
Fitzjohn  v.  Mackinder  (2  L.  T.  R.  [N. 

S.]  374) 
Fitzpatrick,  Adm'r,  v.  Cottingham  (14 

Wis.  219) 
Fitzpatrick  v.  Flagg  (12  Abbott,  189) 
Fitzsimons  v.  Inglis  (5  Taunt.  534) 
Flash,  The  (1  Abbott's  Adm.  119) 
Fleet  V.  Hollenkemp  (13  B.  Monr.  219) 


Fleming  v.  Beck  (48  Penn.  309) 

V.  Niagara  C.  P.  (12  Wend.  246) 

495 

Fletcher  v.  Burroughs  (10  Iowa,  557)  628 

V.  Button  (6  Barb.  646)  180,  197 

V.  Dyche  (2  T.  R.  32)  463,  476 

V.  Sondes  (3  Bing.  591)  478 

V.  Tayleur  (17  C.  B.  21 ;  S.  C.  33 
Eng.  L.  &  E.  187)  79,  707 

Flewster  v.  Royle  (1  Camp.  187)  99 

Flick  V.  Wetherbee  (20  Wis.  392)  329 


XXXVl 


TABLE    OF    CASES. 


Flint  V.  Clark  (13  Conn.  3G1) 

V.  Steadnian  (30  Vt.  210) 
Flower  v.  Adam  (2  Tannt.  314)  102 

Floyd  V.  Hamilton  (33  Ala.  235) 

V.  Ricks  (14  Ark.  286) 
Floycr  v.  Edwards  (1  Cow]).  112) 
Fludyer  v.  Cocker  (12  Ves.  27) 
Flureau  v.  Thornhill  (2  W.  Bl.  1078)   69, 
196,  200,  228, 
Foden  v.  Sharp  (4  Johns.  183) 
Fogarty  v.  Finlay  (10  Cal.  239) 
Foley  V.  McKcegan  (4  Iowa,  1)    198,  465, 
Folkcs  V.  Chadd  (3  Doug.  157) 
Fomin  v.  Oswell  (3  Camp.  357) 
Foote  V.  Burnett  (10  Ohio,  317) 

V.  Nichols  (28  111.  486) 
Forbes  v.  Geddes  (6  La.  Ann.  402) 

V.  Manufiict.  Ins.  Co.  (1  Gray, 
Mas.s.  371) 
Ford  V.  Monroe  (20  Wend.  210)  99, 

V.  Williams  (24  N.  Y.  359) 
Forgie  V.  Henderson  (1  Murray,  410) 
Forrest  v.  CoUyer  (20  Ala.  175) 
V.  Elwes  (4  Vesey,  491) 
Forsyth  v.  Dickson  (1  Grant's  Cas.  26)     [ 

V.  "Wells  (41  Penn.  291)         544, 
561,  572,  573, 
Foster  v.  Baer  (7  La.  Ann.  613) 
V.  Brooks  (6  Ga.  287) 
V.  Dow  (29  Me.  442) 
V.  Fletcher  7  (Monr.  536) 
V.  Pierson  (4  T.  R.  617,  621) 
V.  Rogers  (27  Ala.  602)  320, 

V.  Scoffield  (1  Johns.  297) 
V.  The  Miranda  (6  McLean,  221 ;  1 

Newb.  Adm.  227) 
V.  Thompson  (41  N.  H.  373) 
Foulger  v.  Newcomb  (2  Law  R.  Exch. 

327)  626, 

Fowler  v.  Armour  (24  Ala.  194)  247, 

V.  Colton  (3  Burnett,  Wis.  175) 
V.  Gilman  (13  Mete.  257)         549, 
Fowlkes  V.  Webber  (8  Humph.  530) 
Fox  V.  Harding  (7  Cush.  516) 
Foxcroft  V.  Nevens  (4  Greenl.  72) 
Foxhall  V.  Barnett  (22  Eng.  L.  &  E.  179) 

Franchot  v.  Leach  (5  Cow.  506) 
Francis  v.  Rucker  et  al.  (Ambler,  672) 
Franklin  v.  Long  (7  Gill  &  J.  407) 
Franklin,  Adm'r,  v.  Southeastern   R.  R. 

Co.  (3  Hurl.  &N.  211) 
Franklin  Fire  Ins.  Co.  v.  Hamill  (6  Gill, 

Md.  87) 
Fraser  v.  Berkley  (7  Carr.  &  P.  621) 

V.  Little  (13  Mich.  195) 
Fray  v.  Voules  (1  Ellis  &  E.  839) 
Frazier  v.  Fredericks  (4  Zabr.  162) 

V.  Lomax  (1  Cr.  C.  C.  R.  328) 
Freeland  v.  City  of  Muscatine  (9   Iowa, 

461) 
Freeman  v.  Clute  (3  Barb.  424)      72,  246, 
V.  Hyett  (1  W.  Bl.  394) 
V.  Liickett  (2  J.  J.  Marsh.  390) 
V.  Trovers  (1  Rolle's  Abr.  572) 
Freeman's  Bank  v.  Rollins  (13  Me.  202) 
Frei  v.  Vogel  (40  Missouri,  149) 


PAGE 

49 
182 
,  154 
529 
129 
232 
206 
176, 
430 
275 
122 
,  480 
695 
380 
182 
529 
104 

279 
644 
568 
32 
454 
548 

592, 
607 

559, 
624 
319 
549 
644 
143 
167 
324 
634 

537 
181 

677 
389 
711 
563 
681 
76 
347 

650 
204 
272 
319 

646 

278 
637 

484 

49 

580 

682 

662 
319 
488 
5.52 
705 
367 
581 


Freidenheit  v.  Edmundson  (36  Mo.  226)     533 

Frelig  v.  Piatt  (5  Cow.  494)  504 

French  v.  Bent  (43  N.  H.  448)  254 

V.  Fuller  (23  Pick.  104)  143,  150 

V.  Grindle  (15  Me.  163)  267 

V.  McAllister  (20  Me.  465)  668 

V.  Parish  (14  N.  II.  496)  365 

V.  Snyder  (30  111.  .339)  588 

V.  Willett  (10  Bosw.  566  606 

Frink  v.  Schroyer  (18  111.  416)  648 

Frisbee  v.  Hoffnagle  (11  Johns.  50)  495 

Frisbie  v.  Fowler  (2  Conn.  707)  627 

Frothingham  v.  Everton  (12  N.  H.  239)     374, 

386 

V.  Morse  (45  N.  H.  545)        542, 

552 

Fruhling  v.  Schroeder  (2  Bing.  N.  C.  77)  431 

Fry  V.  Bennett  (1  Abbott's  Pr.  R.  289  ;  4 

Duer,  247)  530 

Fulkerson  v.  George  (3  Abbott's  Pr.  R. 

75)  629 

Fullam  V.  Stearns  (30  Vt.  443)  28,  50 

Fuller  V.  Bowker  (11  Mich.  204)  680 

V.  Brown  (11  Mete.  440)  235 

V.  Chamberlain  (11  Mete.  503)  681 

V.  Edings  (11  Rich.  L.  S.  C.  239)   662, 

666 
V.  Fenner  (16  Barb.  333)  627 

V.  Fenwick  (3  C.  B.  705)  481 

Fulton  Co.  V.  Lucas  Co.  (2  Ohio  St.  508) 

664 
Fultz  j;.  Wycoff  (25  Ind.  321)  86,654 

Funk  V.  Crcswell  (5  Iowa,  62)  195 

V.  Dillon  (21  Mo.  294)  615 

Furman  v.  Elmore  (2  Nott  &  McC.  189)  180 
Furniss  v.  Ferguson  (15  N.  Y.  437)  183 

V.  Hudson  River  R.  R.  Co.  (5 

Sandf.  551)  664 

G 

Gadsden  v.  Bank  of  Georgetown  (5  Rich. 

L.  336)  453 

Gainsford  v.  Carroll  (2  Barn.  &  C.  624)  294 
Gaithcr  v.  Blowers  (11  Md.  536)  634,  638 

Gale  V.  Dean  (20  111.  320)  202 

V.  Leckie  (2  Stark.  107)  100 

Galena,  Dunleith  &  Minnesota  Packet  Co. 

V.  Vandergrift  (34  Mo.  55)  534 

Galloway  v.  Courtney  (10  Rich.  L.  414)  628 
Galsworthy  v.  Strutt  (1  Exch.  659)  458,  466 
Gammage  v.  Alexander  (14  Tex.  414)  433 
Gammell  v.  Skinner  (2  Gall.  45)  437 

Gammon  v.  Howe  (14  Me.  250)  479 

Gandy  v.  Humphries  (35  Ala.  617)  626 

Ganson  v.  Madigan  (13  Wis.  67)  313 

Gardiner  v.  Gray  (4  Campb.  144)  328 

V.  The  Boston  &  Worcester  R. 

R.  Co.  (9  Cush.  1)  663 

Gardner  v.  Armstrong  (31  Mo.  535  393 

V.  Boothe  (31  Ala.  186)  576 

V.  Field  (1  Gray,  151)  615,  682 

V.  Grove  (10  Serg.  &  R.  137)         362 
V.  Heartt  (2  Barb.  165  ;  3  Denio, 

232)  27,  614 

V.  Niles  (16Me.  279)  451 

Garlick  v.  James  (12  Johns.  146)  418 

Garrard  v.  Tuck  (8  C.  B.  231 )  141 


TABLE    OF    CASES. 


xxxvu 


Garretson  v.  Brown  (2  Dutch.  N.  J.  425)   615 

Garrett  v.  Gaines  (6  Tex.  435)  425 

V.  Logan  (19  Ala.  [N.  S.]  344)       453 

V.  Stuart  (1  McCord,  514)       185,  222 

r.  Wood  (3  Kansas,  231)  578 

Garrison  v.  Pearce  (3  E.  U.  Smith,  255)     677 

Garvey  v.  Camden  &  Amboy  E..  R.  Co. 

(4  Abbott's  Pr.  R.  171)  692 

u.  Powler  (4  Sandf.-665)  680 

Garvin  v.  Paul  (47  N.  H.  158  )  718 

Gaskell  v.  Morris  (7  Watts  &  S.  33)  307 

Gates  V.  Meredith  (7  Ind.  440)  628 

V.  Reynolds  (13  Iowa,  1)  199 

Gatewood  v.  Moses  (5  Rich.  L.  244)  445 

Gaulden  v.  Shehee  (24  Ga.  438)  655 

Gauntlett  v.  Whitworth  (2  Car.  &  K.  720) 

697 
Gazelle,  The  (2  Wm.  Rob.  279)  536 

Gee  V,  Lancashire  &  Yorkshire  R.  R. 
Co.  (6  Hurl.  &  N.  211  ;  30  L.  J.  [N.  S.j 
Exch.  11  ;  3  L.  T.  R.  [N.  S.]  328)     36,  81, 

82 
Gelston  v.  Hoyt  (13  Johns.  561)  444 

General  Mutual  Ins.  Co.  v.  Sherwood  (14 

How.  U.  S,  315)  278 

Gennings  v.  Norton  (35  Me.  308)  114 

George  v.  Concord  (45  N.  H.  434)  262 

V.  Elliott  (2  Hen.  &  M.  5)  424 

V.  Law  (1  Cal.  363)  707,  710 

V.  Van  Horn  (9  Barb.  523)  633 

Georgetown,  City  of,  v.  Alexandria  Canal 

Co.  (12  Peters,  91)  153 

Gerard  v.  Prouty  (34  Barb.  454)  392 

Germaine  t'.  Burton  511 

German  Union  Building  &  Saving  Fund 

Ass'n  V.  Sendmeyer  (50  Penn.  67)  420 

Gerrish  w.  Edson  (1  N.  H.  82)  611 

V.  Newmarket  Manufg.   Co.  (10 

Post.  478)  45,  147 

Getty  V.  Rounti-ee  (2  Chand.  Wis.  28)         328 

Gibbs  V.  Bull  (20  Johns.  212)  602 

V.  Chase  (10  Mass.  125)  568,  640 

V.  Fremont  (20  Eng.  L.  &  E.  555  ; 

17  Jur.  820;  9  Exch.  25)    275,  430 

V.  Jemison  (12  Ala.  820)  202 

V.  Tunaley  (1  C.  B.  640)  710,  711 

Gibson  v.  The  Governor  (11  Leigh.  600)     611 

Gilbert  v.  Burtenshaw  (1  Cowp.  2.30)  708 

V.  Wiman  (1   N.  Y.   [1   Comst.] 

550)  341,  351 

Gilbertson  v.  Richardson  (5  C.  B.  502)         96 

Gile,  Adm'r,  v.  Stevens  (13  Gray,  146)        147 

Giles  V.  Dugro  (1  Duer,  331)  190 

V.  O'toole  (4Barb.  261)         87,93,694 

Gill  V.  Cole  (1  Har.  &  J.  403)  137 

V.  Gill  (37  Penn.  312)  130 

V.  Patten  (I  Cr.  C-  C.  R.  465)  136 

Gillard  v.  Brittan  (8  Mees.  &  W.  575)         621 

Gillespie  v.  Thomas  (15  Wend.  464)  209 

Gillet  V.  Mead  (7  Wend.  193)  634 

V.  Van  Rensselaer  (15  N.  Y.  397)     429, 

436 
Gillett  V.  Rippon  ( 1  Moo.  &  M.  406)  367 

V.  West'nR.  R.  Cor.  (8  Allen,  560) 

516 
Gilliam  v.  Canaday  (11  Ired.  L.  106)  148 

Gilligan  v.  New  York  &  Harlem  R.  R. 
Co.  (1  E.  D.  Smith,  453)  636,  647 


FAUE 

Gillingham   v.  Dempsey  (12   Serg.  &  R. 

183)  395 

Gillon  V.  Boddington  (1  R.  &  M.  161)         113 

Gilman  v.  Hall  (11  Vt.  510)  236 

V.  Lowell  (8  Wend.  573)  G28 

Gilpins  V.  Consecjua  (Peters  C.  C.  R.  85)  300, 

432,  442 
Gilson  V.  Wood  (20  111.  37)  615 

Girard  v.  Taggart  (5  Serg.  &  Rawle,  19)   315, 

392 
Gisbourn  v.  Hurst  (1  Salk.  249)  411 

Givhan  v.  Dailey's  Adm'x  (4  Ala.  [N.  S.] 

336)  390 

Glazebrook  v.  Woodrow  (8  T.  R.  366)         205 

Gleason  v.  Chester  (1  Day,  152)  603 

V.  Clark,  Adm'r  (9  Cow.  57)  496 

V.  Pinney  (5  Cow.  152;  5  Wend. 

393)  268 

Glezen  v.  Rood  (2  Mete.  490)  50 

Globe  Ins.  Co.  v.  Lansing  (5  Cow.  380)      418 
Glover  v.  The  North  Staitbrdshire  R.  Co. 

(15  Jur.  673)  665 

Goddard  v.  Baden  (11  Md.  317)  591 

V.  Bulow  (1  Nott  &  McC.  45)         435 
V.  Hart  (5  Gilman,  95)  689 

Godsall  V.  Boldero  (9  East,  72)  287  490 

Godwin  v.  McGehee  (19  Ala.  468)  '  441 

Goetz  V.  Ambs  (27  Mo.  28)  529,  707 

Golf  v.  Inhabitants  of  Rehoboth  (2  Cush. 

475)  432,  434 

Gold  V.  The  Vermont  Central  R.  R.  Co 

(19Vt.  478)  667 

Gold  Hunter,  The  (1  Blatchf.  &H.  300)     398, 

399 
Goldie  V.  Oswald  (2  Dow,  535)  668 

Goller  V.  Fett  (30  Cal.  481 )  624 

Gompertz  v.  Denton  (1  Cr.  &  Mees.  207) 

319 

Good  V.  Mylin  (8  Barr,  51)  134 

Goodall   V.  Thurman  (1  Head  [Tenn.] 

209)  422,  529 

Goodisson  v.  Nunn  (4  T.  R.  761)  205 

Goodloe  V.  Rogers  (10  La.  Ann.  631)      62,  66 

Goodman  v.  Pocock  (15  Q.  B.  576)  247 

Goodnow  V.  Willard  (5  Mete.  517)         49,  594 

Goodpaster  v.  Porter  (11  Iowa,  161)         '  205 

Goodrich  v.  Church  (20  Vt.  187)  605 

V.  Foster  (20  N.  H.  177)  587 

V.  Starr  (18  Vt.  227)  599 

Goodtitle  v.  North  (2  Doug.  584)  134 

V.  Tombs  (3  Wils.  118)         128,  133 

Goodwin  v.  Morse  (9  Mete.  278)  507 

V.  West  (Cro.  Car.  522,  540)        669 

Gordon  v.  Brewster  (7  Wis,  355)  112,  390 

V.  Jenny  (16  Mass.  465)  582 

V.  Kennedy  (3  Binn.  287)  686 

V.  Longest  (16  Peters,  97)  683 

V.  Ogden  (3  Pet.  33)  683 

V.  The  Propeller  Vaughn  536 

Gore  V.  Brazier  (3  Mass.  523,  534)       141,  177 

Gore's  Lessee  v.  Worthington  (3  Har.  & 

McH.  96)  130 

Gorman  v.  Sutton  (32  Penn.  247)  629 

Goslin  V.  Corry  (7  Man.  &  Gr.  343)  111 

Gosling  V.  Birnie  (7  Bing.  339)  570 

Gould  V.  Gardner  (11  La.  Ann.  289)  104 

Gould  V.  The  Bishop  Hill  Colony  (35  lU. 
324)  458 


XXXVlll 


TABLE    Of    CASES. 


PAGE 


664 

51 

614 

143 

690 

120 
159 

611 

589 
526 
319 


482,  483 
Penn. 

206 
314 
261 
144 
33,  528 
Co.   V. 


Gould  V.  The  Hudson  River   R.  R.  Co. 

(12  Barb.  616) 
Goulding  v.  Hewitt  (2  Hill,  644) 
Goulet  V.  Asseler  (22  N.  Y.  225) 
Gourdier   v.    Cormack    (2   E.  D.  Smith, 

200) 
Gourdin  v.  Read  (10  Rich.  L.  217) 
Gov.  &  Co.  of  the  British  C.  P.  Manufac- 
tory V.  Meredith  (4  T.  R.  794) 
Gov. "of  Harrow  School  v.  Alderton  (2  B. 

&  P.  88) 
Governor,  The,  v.   Matlock  (1    Hawks, 
425) 
V.  Raley  (34  Ga.  173) 
Grable  v.  Margrave  (3  Scamm.  372) 
Graham  v.  Bardin  (1  Patt.  &  H.  206) 

V.  Bickham  (4  Dall.  149  ;  S.  C. 

2  Yeates,  32) 
V.  Graham's    Ex'rs    (34 
,  475) 

V.  Jackson  (14  East,  498) 
V.  Marshall  (52  Penn.  9) 
V.  Peat  (1  East,  244) 
V.  Roder  (5  Tex.  141) 
Grand  Junction   R.   R.  and   D. 

County    Comm'rs    of    Middlesex    (14 
Gray,  553)  668 

Grand  Lodge  of  Masons  v.  Knox  (20  Mo. 

433)  504 

Granite  State,  The  (4  Wallace  U.  S.  310)  536, 

537 

Grant  y.  Astle  (2  Doug.  722,  731)        671,  686 

y.  Button  (14  Johns.  377)  498 

V.  Healy  (3  Sumner,  523)  265 

V.  McDonough  (7  La.  Ann.  447)      528 

GTassellly.  Lowden  (11  Ohio  St.  349) 

Graven;.  Sholl  (42  Penn.  58) 

Graves  v.  Dash  (12  Johns.  17) 

V.  Otis  (2  Hill,  466) 

V.  Waller  (19  Conn.  90) 

Gray  v.  Briscoe  (Noy,  142) 

V.  Cox  (6  Dowl.  &  Ry.  200) 

V.  Crosby  (18  Johns.  219,  226) 

V.  Stevens  (28  Vt.  1) 

V.   The  President  of  the  Portland 

Bank  (3  Mass.  364)  299,  420 

V.  Waterman  (40  HI.  522)  145,  640 

Greasley  v.  Higginbottom  (1  East,  636)         92 

V.  Codling  (2  Bing.  263)  29 

Great  Indian   Peninsula    R'way   Co.   v. 

Saunders  (1  Best  &  S.  41)  280 

Great  Western  Railway  Co.  v.  Redmayne 

(1  L.  R.  [C.  P.]  329)  80,  81,  82 

Greely  v.  The  Fremont  Ins.  Co.  (9  Cush. 

Mass.  415)  280 

Green  v.  Biddle  (8  Wheat.  180)    133,  136, 165 
V.  Davies  (4  Barn.  &  C.  235) 
V.  Eales  (2  Q.  B.  225) 
V.  Farmer  (4  Burr.  2214) 
v.  Garcia  (3  La.  Ann.  702) 
V.   Hudson    River  R.  R.   Co. 

Barb.  9  ;  32  Barb.  25) 
V.  Mann  (11  111.  613) 
V.  Partlow,   14  Rich.  Law  [S.  C] 

237)  529 

V.  Shurtliff  (19  Vt.  592)  684 

V.  Sizer  (40  Miss.  530)  270 

j;.  Spencer  (3  Mo.  225)  229,  422 


467 

45 

26,  273 

121 

687 

167,183 

328 

458,  471 

615 


51 

212 

562 

441 

(28 

99,  647 
164,  213 


Green,  Ex'r,  V.  Price  (13   Mees.    &   W. 

695) 
Greene  v.  Allen  (32  Ala,  215) 

V.  Bateman  (2  Woodb.  &  M.  359) 

V.  Creighton  (7  R.  I.  [4  Ames]  1  ; 

2  Am.  Law  Reg.  [N.  S.]  383) 

V.  Tallman  (20  N.  Y.  191)      190, 

V.  Waggoner  (2  Hilt.  297) 
Greenfield  Banku.  Leavitt  (17  Pick.  1) 

568, 
Greening  v.  Wilkinson  (1  Car.  &  P.  625) 

Greenleaf  v.  Cook  (2  Wheat.  13) 
V.  Kellogg  (2  Mass.  568) 
V.  McColley  (14  N.  H.  303) 
Greenly  v.  Hopkins  (10  Wend.  96) 
Greenup  v.  Stoker  (2  Oilman,  688) 
Greenvault  v.  Davis  (4  Hill,  643) 
Greenville  &  Columbia  R.  R.  Co.  v.  Nun- 

namaker  (4  Rich.  L.  107) 
Greenville  &  Columbia  R.  R.  Co.  v.  Part- 
low  (5  Rich.  L.  428 ;  14  Rich.  L.  237) 

Greer  v.  The  Mayor,  &c.,  of  N.  Y.  (11 
Abbott,  [N.  S.]  206  ;  3  Rob.  N.  Y.  406) 

Gregg's  Case  (2  Salk.  596) 
Gregory  v.  McDowell  (8  Wend.  435) 
V.  Stryker  (2  Denio,  628) 
V.   The  Duke  of  Brunswick   (7 
Scott  N.  R.  972) 
Grier  v.  Ward  (23  Ga.  145) 
Griffin  v.  Colver  (16  N.  Y.  489) 


143, 
33,71 

79,  81, 


V.  Reynolds  (17  How.  609 
Griffith  V.  Follett  (20  Barb.  620) 
Griffiths  V.  Perry  (1  Ellis  &  E.  680) 
Grimshaw  v.  Bender   (6  Mass.  157,  161, 

162) 
Grinnelly.  Wells  (7  Man.  &  Gr.  1033) 
Grist?;.  Hodges  (3  Dev.  198) 
Griswold  v.  Hepburn  (2  Duvall  [Ky.],  20) 
Groat  V.  Gillespie  (25  Wend.  383) 
Grout  V.  Townsend  (2  Hill,  554) 
Grubb  V.  Brooke  (47  Penn.  485) 
Guard?;.  Risk  (11  Ind.  156) 
Guerard's  Ex'rs  v.  Rivers  (1  Bay,  265) 
Guernsey  v.  Carver  (8  Wend.  492) 
Gu^rry  v.  Kerton  (2  Rich.  L.  507) 
Guild  V.  Guild  (2  Mete.  229) 
Guille  V.  Swan  (19  Johns.  381) 
Guiteman  v.  Davis  (45  Barb.  576,  note) 
Gulliver  v.  Drinkwater  (2  T.  R.  261) 
Gunter  v.  Astor  (4  Moore,  12)  96, 

V.  Cleyton  (2  Lev.  85) 
Guthrie  v.  Pugslev  (12  Johns.  126)       182, 

V.  Wickliffs  (4  Bibb,  541) 
Guy  V.  Frankhn  (5  Cal.  416) 
Gujon  V.  Serrell  (1  Blatchf  244)  109  ,110, 
Gwin  V.  Breedlove  (2  How.  Miss.  29) 


467 
504 
312 

162, 
194 
191, 
194 
230 
549, 
573 
545, 
547 
504 
275 
424 
433 
114 
185 

664 

534, 
664 

150, 
433 
449 
311 
561 

687 
516 
.  72, 
410 
183 
664 
421 

272 
632 
168 
262 
643 
184 
439 
529 
180 
248 
710 
104 
86 
265 
135 
635 
589 
186 
217 
9 
674 
668 


H. 

Hacker  v.  Blake  (17  Ind.  97) 
Hackett  v.  B.  C.  &  M.  R.  R. 

390) 


187 
(35  N.  H. 
395,  401,  404 


TABLE    OF    CASES. 


XXXIX 


Hackctt  u.  Richards  (3  E.  D.  Smith,  13)     682 
Haddrick  v.  Heslop  (12  Q.  B.  267)  691 

Hadley  v.  Baxendale   (9   Exch.  341  ;  26 
Eng.  L.  &  Eq.  398)       78,  79,  80,  81,  82,  85, 
87,  311,  328,  329,  400,  401,  402,  410,  413 
Haganv.  Riley  (13  Gray,  Mass.  515/    51,  116 
Haggart  v.  Morgan  (5  N.  Y.   [1   Seld.] 

422)  484 

Hague  V.  Powers  (39  Barb.  427)  262 

Hahn  v.  Cummings  (3  Iowa,  583)  656 

Haight  y.  Hayt  (19  N.  Y.  464)  656 

Hair  v.  Little  (28  Ala.  236)  528,  615,  681 

Haire  v.  Baker  (5  N.  Y.  [1  Seld.]  357)        195 
Haldeman  v.  Jennings  (14  Ark.  329)  480 

Halderman  v.  Beckwith  (4  McLean,  286)    535 
Hale  V.  City  of   New   Orleans    (13   La. 

Ann.  499)  191 

V.  James  (6  Johns.  Ch.  258)  141 

V.  Thomas  (1  Vern.  349)  449 

V.  The  Washington  Ins.  Co.  (2  Story, 

176)  279 

Hales  V.  London  &  N.  W.  Railway  Co.  (4 

Best  &  S.  66)  401 

Haley  v.  Dorchester  Mutual  Fire  Ins.  Co. 

(12  Gray,  545)  284 

Hall  V.  Chapman's  Adm'rs  (35  Ala.  553)    566 
V.  Clark  (21  Mo.  415)  504 

V.  Crowley  (5  Allen,  304)  479 

V.  Dean  (13  Johns.  105)  190 

V.  Gale  (20  Wise.  292)  672 

u.  Nash  (10  Mich.  303)  341 

t;.  Poyser  (13  Mees.  &  W.  600)  711 

V.  Ross  (1  Dow,  201)  54 

V.  White  (27  Conn.  488)  345 

V.  Wiles  (2  Blatch.  194)  674 

V.  York  (22  Texas,  641 )  180 

Hallett  V.  Novion  (14  Johns.  273  ;  16 

Johns.  327)  441,  548 

Hallock  V.  Belcher  (42  Barb.  199)        340,  342 

V.  Miller  (2  Barb.  630)  627 

V.  Slater  (9  Iowa,  599)  465 

Halsey  v.  Hurd  (6  McLean,  102)  291 

V.Woodruff  (9  Pick.  555)  681,  688 

Ham  V.  Goodrich  (37  N.  H.  185)  207 

V.  Hill  (29  Mo.  275)  .342,  346 

Hambleton  v.  Veere  (2  Saund.  170)     111,  686 

Hamer  v.  Hathaway  (33  Cal.  117)      552,  568, 

657 
Hamilton  v.  Annapolis  &  Elk  Ridge  R. 
R.  Co.  (1  Md.  Ch.  Decis. 
107)  664 

V.  Cutts  (4  Mass.  349)  168,  364 

V.  Ganyard  (34  Barb.  204)  291 

V.  McPlierson  (28  N.  Y.  72)  80 

I'.  Mendes  (2  Burr.  1198, 1210) 

278 
Hamlin  v.  Great  Northern  Railway   Co. 
(1  Hurl.  &  N.  408;  38  Eng.  L.'&  E. 
335)  407 

Hammer  v.  Briedenbach  (31  Mo.  49)  465 

Hamner  i'.  Griffith's  Adm'r  (1  Grant's 

Cas.  193)  587 

Hamond  v.  Holiday  (1  Car.  &  P.  384)         511 
Hand  v.  Baynes  (4  Whart.  204)  395 

Handley  v.  Chambers  (1  Littell,  357)  200,  441 
Hanmer  v.  Wilsey  (17  Wend.  91)  640 

Hanna  v.  Harter  (2  Ark.  397)  311 

V.  Mills  (21  Wend.  90)  316 


Hanover  R.  R.  Co.  v.  Coyle  (55  Penn.  396) 

86,  649 
Harder  t;.  Harder  (26  Barb.  409)  157 

Harding  v.  Carter  (1  Park,  on  Ins.  5)         379, 

567 
V.  Cowing  (28  Cal.  212)  263 

V.  Inhabitants  of  Medway  (10 

Mete.  465)  668 

V.  Larkin  (41  111.  413)  174 

Hardy  v.  Bern  (5  T.  R.  636)  451 

V.  Martin  (1  W.  Brown,  419)  462 

V.  Nelson  (27  Me.  525)  179 

V.  Thomas  (23  Miss.  544)  682 

Harger  v.  Edmonds  (4  Barb.  256)        505,  694 

V.  McMains  (4  Watts,  418)  566 

Hargous  v.  Ablon  (3  Denio,  406)  325 

V.  Ablon  (5  Hill,  473)  85 

V.  Lahens  (3  Sandf.  N.  Y. 

213)  277 

Harker  v.  Dement  (9  Gill,  7)  144,  571 

Harlow  v.  Thomas  (15  Pick.  66)  190 

Harman   v.    Goodrich  (1   Greene,   Iowa, 

13)  582 

Harness    v.    Chesapeake    &   Ohio    Canal 

Co.  (1  Md.  Ch.  Decis.  248)  664 

Harper  v.  Luffkin  (7  Barn.  &  C.  387)  633 

V.  Williams  (4  Q.  B.  219)  431 

Harrington  v.  Snyder  (3  Barb.  380)  r,03 

V.  Stratton  (22  Pick.  510)  507 

Harris  v.  Clap  (1  Mass.  308)  482 

V.  Hardy  (3  Hill,  393)  477 

V.  Montgomery  (15  Jur.  757)  681 

V.  Newell  (8  Mass.  262)  178 

V.  Panama  R.  R.  Co.  (5  Bosw. 

312)  396 

Harrison  v.  Allen  (2  Bing.  4)  709 

V.  Harrison  (1  Car.  &  P.  412)      294 

V.  Murrell  (5  Monr.  359)  424 

V.  Wright  (13  East,  342)  482 

Harrow  School  v.  Alderton  (2  Bos.  &P. 

86)  46 

Hartfield  v.  Roper  (21  Wend.  615)  538 

Hartland  v.  The  General  Exch.  Bank  (14 

L.  T.  R.  [N.  S.]  863)  389,  390 

Hartley  v.  Herring  (8  T.  R.  1.30)  627 

Hartwell  v.  Jewett  (9  N.  H.  249)  390 

Harvey  v.  Pocock  (11  Mees.  &  Welsh.  740) 

622 

V.  Rickett  (15  Johns.  87)  711 

V.  Snow  (1  Yeates,  156)  129 

V.  Thomas  (10  Watts,  63)  144 

V.  Turner  (4  Rawle,  229)  386 

Hasbrouck  «.  Baker  (10  Johns.  248)  669 

V.  Hasbrouck  (27  N.  Y.  182)  9 

I'.  Tappen  (15  Johns.  200)  470 

Haskell  v.  McHenry  (4  Cal.  411)  313 

Hassa  v.  Junger  (15  Wis.  598)  534 

Hastings  v.  Crunckleton  (3  Yeates,  261)     159 

V.  Wiswall  (8  Mass.  455)      275,  440 

Haswell  v.  The  Vermont  Central  R.  R. 

Co.  (23  Vt.  228)  663 

Hatcli  V.  Vermont  Central  R.  R.  Co.  (25 

Vt.  49)  121,662,663 

Hatchell  v.  Kimbraugh  (4  Jones  L.  163)       67 
Hatchett  v.  Gibson  (13  Ala.  587)  508 

Hathaway  v.  Crosby  (17  Me.  448)  668 

Hathorne  v.  Stinson  (3  Fairf.  183)  45 

Haughton  i'.  Benbury  (2  Jones  Eq.  337)     558 


xl 


TABLE    OF    CASES. 


/ 


Havemeyer  v.  Cunuingham  (35  Barb. 

51.5)   '  '  291 

Haven  v.  Foster  (9  Pick.  112)  434 

Haverstick  v.  Erie  Gas  Co.  (29  Penn. 

254)  104 

Haviland  v.  Parker  (11  Mich.  103)  619 

Hawes  v.  Watson  (2  Barn.  &  C.  541)  570 

Hawk  V.  llidgway  (33  111.  473)  529,  532 

Hawkins  v.  Cooper  (8  Car.  &  P.  473)  535 

V.  Coulthurst  (5  Best  &  S.  343)  223, 

427 

V.  Kemp  (3  East,  410)  204 

i;.  Eilcy  (17  B.  Monr.  101)  528 

Hawley  v.  Warner  (12  Iowa,  42)  581 

Hay  r.  Cohoes  Co.  (3  Barb.  42  ;  2  N.  Y. 

159)  29,  149,  518 

Haycraft  v.  Creasy  (2  East,  92)  47,  612 

Hayden  v.  Anderson  (17  Iowa,  158)  581 

V.  Bartlett  (35  Me.  203)  545,  552 

V.  Cabot  (17  Mass.  169)  63,  82 

V.  Madison  (7  Greenl.  76)  242 

V.  Sample  (10  Mo.  215)  453 

Hayes  v.  Porter  (22  Me.  371 )  586 

V.  Seaver  (l  Greenlf.  237)  347 

Haynes  v.  Sinclair  (23  Vt.  108)  89,  633 

V.  Stevens  (11  N.  H.  28)  193 

V.  Tennv  (45  N.  H.  183)  607 

Hays  V.  Borders' (1  Gilman,  46)  635 

w.  Bryant  (1  H.  Bl.  253)  348 

V.  Riddle  (1  Sandf.  248)  557 

Hayter  v.  Moat  (2  Mees.  &  W.  56)  687 

Haythorn  v.  Lawson  (3  Car.  &  P.  196)       642 

Hayward  v.  Leonard  (7  Pick.  181)       239,  242 

V.  Newton  (2  Strange,  940)  710 

Hazard  v.  Israel  (1  Binn.  240)  611 

V.  N.  E.  Mar.  Ins.  Co.  (1  Sumn. 

218)  278 

Head  w.  Lodge  (20  Pick.  53)  347 

Heard  v.  Bowers  (23  Pick.  455)  476 

V.  Holman  (19  C.  B.  [N.  S.]  1)  71,  536 
Heaston  v.  Colgrove  (3  Ind.  265)  242,  506 
Heath  v.  Hubbard  (4  East,  110,  121)  470 

V.  Lent  (1  Cal.  410)  453,  454 

V.  Wells  (5  Pick.  140)  178 

Heck  V.  Shener  (4  Serg.  &  R.  249)  488 

Hedgepeth  v.  Robertson  (18  Tex.  858)         529 
Heermance  v.  Vernoy  (6  Johns.  5)  142 

Heermans  v.  Williams  (11  Wend.  636)        669 
Hefford  v.  Alger  (1  Taunt.  218)  482,  584 

Heil  V.  Glanding  (42  Penn.  493)  516 

Heirn  v.  McCaughan  (32  Miss.  17)      407,  529 
Hekscherw.  McCrea  (24  Wend.  304)  204,  231, 

405,  490,  512 
Hellen  v.  Ardley  (3  Car.  &  P.  12)^  482 

Helsham  y.  Blackwood  (20  LawJ.  R.  [N. 

S.]C.  P.  187)  629 

Hempstead  v.  N.  Y.  Central  R.  R.  Co. 

(28  Barb.  485)  396 

Henckley  v.  Hendrickson  (5  McLean,  170)  313 
Henderson  v.  Sevey  (2  Greenl.  139)  84 

V.  Ship' Maid  of  Orleans  (12 

La.  Ann.  352)  397 

Hendricks  v.  Franklin  (4  Johns.  119)  272 

Hendrickson  v.  Anderson  (5  Jones  L.  [N. 

C]  246)  231 

V.    Kingsbury      (Iowa     Su- 

Sreme  Court,  1  Western 
mist)  532 


Henning  v.  Van  Hook  (8  Humph.  678)     508 

V.  Van  Tyne  (19  Wend.  101)        430 

V.  Withers  (3  Brevard,  458)  180 

Henry  v.  Earl  (8  Mees.  &  W.  233)  453 

V.  Pittsburg  Bridge  Co.  (8  Watts 

&  S.  85)  120 

Henshaw  V.  Bank  of  Bellows  Falls  (10 

Gray,  568)  569 

Henson  v.  Chastine  (3  Jones  L.  [N.  C.J 

550)  698 

V.  Hampton  (32  Mo.  408)  237 

Hentz  V.  The  Long  Island  R.  K.  Co.  (13 

Barb.  646)  664 

Hepburn  v.  Sewell  (5  Har.  &  J.  211)  575 

Herbert  v.  Ford  (29  Me.  546)  508 

V.  Stanford  (12  Ind.  503)  220 

Herdic  v.  Young  (55  Penn.  176)  582 

Herkimer  Manuf.  Co.  v.  Small  (21  Wend. 

273;  2  Hill,  127)  419 

Herman  v.  Drinkwater  (1  Greenl.  27)         692 
Herndon  v.  Harrison  (34  Miss.  486)  187 

Herri ck  v.  Moore  (19  Me.  313)  191 

Herring  v.  Wilmington  &  Raleigh  R.  R. 

Co.  (10  Ired.  L.  402)  697 

Hersfield  v.  Adams  (19  Barb.  577)  395 

Hertzog  v.  Hertzog's   Adm'r    (34  Penn. 

418)  177,206 

Hessing  v.  McCIoskey  (37  111.  341)  588 

Hewitt  V.  Prime  (21  Wend.  79)  633 

Heyman  v.  Sanders  (12  Cal.  107)  257 

Hey  ward  v.  Cuthbert  (1  McCord,  386)        139 

Hey  wood  v.  Hey  wood  (42  Me.  229)  270 

Hibbard  v.  Foster  (24  Vt.  542)  144 

V.  Stewart  (1  Hilt.  207)  640 

Hicks  V.  Foster  (13  Barb.  663)  106,  529 

V.  Herring  (17  Cal.  566)  118 

V.  Newport,  A.  &  H.  R.  R.  Co.  (4 

Best  &  S.  403,  note)  646 

Hicock  V.  Buck  (22  Vt.  149)  558 

Higgins  V.  Lee  (16  111.  495)  499 

V.  Sargent  (2  Bam.  &  C.  348)    276, 

431 

V.  Whitney  (24  Wend.  379)  641 

Higginson  v.  Weld  (14  Gray,  165)      405,  465, 

480 
Hill  V.  Carr  (1  Ch.  Cas.  294)  485 

V.  Featherstonehaugh  (7  Bing.  569)      509 
V.  Goodchild  (5  Burr.  2790)  688 

V.  Hobart  (16  Me.  164)  206 

V.  Maupin  (3  Mo.  323)  229,  422 

V.  Mohawk  &  Hudson  R.  R.  Co. 

(7  N.  Y.   [3  Seld.]   152)  664 

V.  New  Orleans,  &c.,  R.  R.  Co.  (11 

La.  Ann.  292)  528,  532 

V.  Packard  (5  Wend.  375)  391 

V.  Sayles  (12  Mete.  142)  672 

V.  Smith  (12  Mees.  &W.  618)  421 

V.  Smith  (32  Vt.  433)  305,  678 

V.  Supervisors  of  Livingston  Co.  (12 

N.  Y.  [2  Kern.]  52)  664 

V.  Wilson  (8  Blackf.  123)  633 

Hillebrant  v.  Brewer  (6  Tex.  45)  542,  707 

Hills  V.  Bannister  (8  Cow.  31)  496 

Hillyard  v.  Crabtree  (11  Tex.  264)  242 

Hilton  V.  Woods  (4  L.  R.  Eq.  432)  625 

Himeley  v.  Rose  (5  Cranch,  313)  444 

Hinckley  v.  Beckwith  (13  Wis.  31  ;  17 

Wis.  413)  76,  77,  80,  84,  85 


TABLE    OF    CASES. 


xH 


PAGE 

Hinman  v.  Borden  (10  Wend.  367)  592 

Hinsdell  v.  Weed  (5  Dcnio,  172)  512 

Hintragar  v.  Bates,  clerk,  &c.  (18  Iowa, 

174)  261 

Hitchcock  V.  Harrington  (6  Johns.  290)      140 
V.  Hunt  (28  Conn.  343)        93,  325, 
508 
Kitchens  v.  Hitchens  (2  Vern.  403)  139 

Hitt  V.  Allen  (13  111.  592)  429 

•Hixon  V.  Hixon  (7  Humph.  33)  269 

Hoag  V.  McGinnis  (22  Wend.  163)  475 

Hoagland  v.  Moore  (2  Blackf.  167)  236 

Hoard  v.  Garner  (3  Sandf.  179)  377,  386,  444 
Hobbs  V.  Riddick  (5  Jones  L.  [N.  C]  80) 

505 
Hoblins  v.  Kimble  (1  Bulst.  49)  681 

Hobson  V.  Thelluson  (16  L.  T.  R.  837)      594, 

607 

V.  Trevor  (2  P.  Wms.  191)  449 

Hodges  V.  King  (7  Mete.  583)  476 

V.  Litchfield  (1  Bing.  N.  C.  492)     196 

Hodgkins  v.  Robson  (1  Vent.  276)  209 

Hodgson  V.  Bell  (7  T.  R.  97)  343 

V.  Millward  (3  Grant^s  Gas.  406)  531 

V.  Sidney  (1  L.  R.  Exch.  313)      421 

V.  Wood  (2  Hurl.  &  C.  649  ;  33 

L.J.  [N.  S.]  Exch.  76;  11 

L.  T.  R.  [N.  S.J  180)  343 

Hodsoll  V.  StaUebrass  ( 1 1  Ad.  &  E.  301 )     118 

Hoe  V.  Sanborn  (21  N.  Y.  554)  328 

Hoey  V.  Felton  (31  L.  J.  [N.  S.]  C.  P. 

105;  5  L.  T.  R.  [N,  S.l  354;llC.B. 

[N.  S.]  142)  91 

Hogan  17.  Kellum  (13  Tex.  396)  588 

Hogg  V.  Emerson  (11  How.  587)  674 

Hoitt  V.  Holcomb  (32  N.  H.  185)  341 

Holcomb  V.  Rawlyns  (Cro.  Eliz.  540)         137, 

144 
Holdfast  V.  Shephard  (9  Ired.  222)  135 

Holdipp  V.  Otway  (2  Saund.  102)  704 

Holland  v.  Makepeace  (8  Mass.  418)  358 

Holies  V.  Carr  (3  Swanst.  648)  485 

Holley  V.  Mix  (3  Wend.  350)  688 

Holliday  v.  Marshall  (7  Johns.  211)  214 

Hollingsworth  v.  Hammond  (30  Ala.  668)  433 
Hollinsead  v.  Mactier  (13  Wend.  276)  244 
HolHster  v.  Union  Co.  (9  Conn.  436)  121 

HolloAvay  v.  Gotten  (33  Ala.  529)  324 

V.  Turner  (6  Q.  B.  928)  636 

Holmes  v.  Davis  (21  Barb.  265  ;  19  N.  Y. 

488)  129,  133 

V.  Holmes  (12  Barb.  137)  481 

u.  Rankin  (17  Barb.  454)  432 

V.  Rhodes  (1  Bos.  &  P.  638)  343 

V.  Seely  (19  Wend.  507)  143,  144 

V.  Stummel  (17  111,  455)  234 

V.  Wilson  (10  Ad.  &  E.  503)  155 

V.  Woodruff  (20  Vt.  97)  684 

Hone  V.  Mutual  Safety  Ins.  Co  ( 1  Sandf. 

137)  253 

Honsee  v.  Hammond  (39  Barb.  89)  143,  699 
Hood  V.  New  York  &  N.  H.  R.  R.  Co. 

(22  Conn. 1)  396 

V.  Raines  (19  Tex.  400)  230 

Hook  V.  Stovall  (26  Ga.  704)  320 

Hooker  v.  New  Haven   &  Northampton 

Co. (14  Conn. 146)  121 

Hoot  V.  Spade  (20  Ind.  326)  183 


PAGE 

Ilootman  v.  Shriner  (15  Ohio  St.  43)  695 

Hope  V.  Alley  (9  Tex.  394)  44,  67 

Hopkins  v.  Atlantic  &  St.  Lawrence  R. 

R.  Co,  (36  N.  H.  9)       113,  529 

V.  Beadle  (1  Cal,  347)  687 

V.  Grazebrook  (6  Barn,  &  C.  31)  197, 

199,  223,  228 

V.  Lee  (6  Wheat,  109,  118)  199 

V.  Yowell  (5  Yerger,  305)  181 

Hopping  V.  Quin  (12  Wend.  517)  495 

Hopple  V.  Higbee  (3  Zabr.  342)    606,  615,  682 

Hord  V.  The  Nashville,  &c,  R,  R,  Co.  (2 

Swan,  497)  664 

Hordern  v.  Dalton  (1  Car.  &  P.  181)  101 

Horn  V.  Batchelder  (41  N.  H.  86)  242 

V.  Bavard  (11  Rob.  La,  259)  643 

Horner  v.  Eliutoti"  (9  Mees.  &  W,  678)      463, 

466 
V.  Wood  (16  Barb,  386)  72 

Homstein  v.  Atlantic  &  Great  Western 

R,  R.  Co.  (51  Penn.  87)  663 

Horsford  v.  Wright  (Kirby,  3)  179 

Horton  v.  Reynolds  (8  Tex.  284)  558 

Hosking  v.  Phillips  (3  Exch.  168)  143 

Hoskins  v.  Duperov  (9  East,  498)  316 

V.  Robins  (2  Saund.  327)  156 

Hosley  v.  Brooks  (20  111.  115)  529,  630 

Hosmer  v.  True  (19  Barb.  106)  480 

V.  Wilson  (7  Mich.  294)  231,  245 

Hotchkiss  V.  Auburn  &  Rochester  R.  R. 

Co.  (36  Barb.  600)  130 

V.  Jones  (4  Ind.  260)  582 

Hotham  v.  East  India  Co.  (1  T.  R.  638)    246 
Houghton  V.  Bankhard   (3  L.  T.  R   [N, 

S.]  266)  155 

V.  Lyford  (39  Me.  267)  610 

House  V.  House  (10  Paige,  158)  180 

r.  Marshall  (18  Mo,  369)  .504 

Houston  V.  Howard  (39  Vt.  54)  636 

V.  Young  (7  Ind.  200)  491 

How  V.  How  (48  Me.  428)  426 

Howard  v.  Barnard    (20   Eng.  L.  &,   E, 

286;  S.  C.  11  C.  B.  653)  710,  711 

V.  Cooper  (45  N,  H.  339)  569 

V.  Hopkins  (2  Atkyns,  371)  481 

Howe  V.  Handley  (28  Me.  241 )  579 

V.  Mackay  (5  Pick.  44)  361 

Howell  V.  Howell  (10  Ired.  84)  628 

V.  Young  (5  Barn.  &  C.  259)  113 

Howland  v.  Vincent  (10  Met.  371)  27 

Howlet  V.  Strickland  (Cowp.  56)  488 

Hoxie  V.  Lincoln  (25  Vt.  206)  237 

Hoy  V.  Gronoble  (34  Penn,  9)  76,  417 

Hoyt  V.  Gelston  (13  Johns,  141,  561)     530, 

639 
V.  Miner  (7  Hill,  525)  673 

V.  N,  Y,  Life  Ins.  Co.  (3  Bosw.  440) 

288 
V.  Wildfire  (3  Johns.  518)  231 

Hubbard  v.  Belden  (27  Vt.  645)  236,  238 

V.  Charlestown  B.  R,  R,  Co,  (11 

Met.  124)  434 

V.  Shaler  (2  Day,  195)  603 

Hubbellr.  Rochester  (8  Cow.  115)  671 

Hubbly  V.  Brown  (16  Johns.  70)  277,  362 

Hubert  v.  Groves  (1  Esp.  148)  29 

Huckle  V.  Money  (2  Wils.  205)  519 

Hudspeth  v.  Johnson  (34  Geo.  403)  717 


xlii 


TABLE    OF    CASES. 


Huelsenkamp  v.    Citizens'   Railway   Co. 

(34  Mo.  45)  648 

Hiiggefoid  V.  Ford  (11  Pick.  223)  580 

Hughes  V.  Cannon  (1  Sneed,  622)  235 

V.  Graeme  (33  L.  J.  [N.  S.]    Q. 

B.  335)  331,  392 

V.  Heiscr  (1  Binney,  463)  30 

V.  Smith  (5  Johns.  168)  342 

Hulett  V.  SouUard  (26  Vt.  295)  363 

Hull  V.  Clark  (14  Sm.  &  Marsh.  187)  543 

Hummell  v.  Brown  (24  Penn.  310)  429 

Humphrey  v.  Hathorn  (24  Barb.  278)         592 

V.  Phinney  (2  Johns.  484)  140,  141 

V.  Reed  (6  Whart.  435)  512 

Humphrey's    Adm'rs    v.   McClenachan's 

Adm'rs  (1  Mun.  493)  181 

Humphreys  v.  Union  Ins.  Co.  (3  Mason, 

429)  283 

Humphries  v.  Johnson  (20  Ind.  190)  530 

V.  Parker  (52  Me.  502)  630 

Hunneman  v.  Inhabitants  of  Grafton  (10 

Met.  454)  316 

Hunt,  Adm'r,  v.  Crane  (33  Miss.  669)         231 
Hunt  V.  Amidon  (4  Hill,  349)  352 

V.  Bennett  (4  E.  D.  Smith,  647  ;  19 

N.  Y.  173)  529 

V.  Hoyt  (20  111.  544)  648 

r.  Nevers  (15  Pick.  500)  432,434 

y.  Orwig  (17  B.  Monr.  73)  182 

V.  The  Hoboken  Land  Improvera't 

Co.  (3  E.  D.  Smith,  144)  71 

V.  The  Otis  Co.  (4  Met.  464)  507 

V.  Whitney  (4  Met.  603)  668 

Hunter  v.  Bennett  (15  La.  Ann.  715)  643 

V.  Fry  (2  Barn.  &  Aid.  421)  405, 

426 

17.  Prinsep  (10  East,  378,  391)         542 

V.  Stewart  (47  Me.  419)  678 

V.  Waldron  (7  Ala.  753)  508 

Huntley  v.  Bacon  (15  Conn.  267)       106,  522, 

604 

Hurd  V.  Hall  (12  Wis.  112)  189 

V.  Hubbell  (26  Conn.  389)  544,  545, 

552 

V.  Swan  (4  Denio,  75)  669 

Hurst  V.  Cook  (19  Wend.  463)  570 

V.  Hurst  (4  Exch.  571)  462 

Huse  V.  Alexander  (2  Met.  157)  358 

Hussey  v.  Manuf.  &  Mechan.  Bank  (10 

Pick.  415)  552 

f.  Roquemore  (27  Ala.  281)  481 

Husten  v.  Richards  (44  Me.  182)  426 

Huston   V.  Wickersham  (2  Watts   &   S. 

308)  137 

Hutchins  v.  Hutchins  (7  Hill,  104)       91,  252, 

654 
V.  McCann  (7  Porter,  Ala.  94)    267 
Hutchinson  v.  Reid  (3  Camp.  329)  316 

V.  Schimmelfeder  (40  Penn. 

396)  44 

V.  Wetmore  (2  Cal.  310)  237 

Hutton  V.  Williams  (35  Ala.  503)  393 

Hvatt  V.  Adams  (16  Mich.  180)  644 

Hyde  v.  Cookson  (21  Barb.  92)  561 

V.  Stone  (7  Wend.  354)  441,  567 

Hylton  V.  Brown  (2  Wash.  C.  C.  R.  165)    136 
Hyslop  V.  Staig  (1  Murr.  15)  527 

Hythey.  East  (1  L.  R.  Eq.  620)  9 


Icely  V.  Grew  (6  Nev.  &  M.  467)  205,  486,  489 
Illinois  Central  R.  R.  Co.  v.  Barron  (5 

Wallace,  90)  647,  648,  649 

Illinois  Central  R.   R.    Co.  v.  Finnigan 

(21  111.  646)  539 

Ilsley  V.  Jewett  (2  Met.  168)  436 

V.  Jones  (12  Gray,  260)  274 

Indiana  Central  R.  W.  Co.  v.  Moore  (23 

Ind.  14)  252 

Indiana  &  Illinois  Central  R'way  Co.  v. 

Scearce  (23  Ind.  223)  416 

Ingalls  V.  Lord  (1   Cow.  240)  564 

Ingersoll  v.  Jones  (5  Barb.  661 )  631,  634 

V.  Van  Bokkelin  (7  Cow.  670; 

S.  C.  5  Wend.  315)  557 

Ingerson  v.  Miller  (47  Barb.  47)  633 

Ingiedew  v.  Northern  R.  R.  Co.  (7  Gray, 

86)  402 

Ingram  v.  Lawson  (6  Bing.  N.  C.  212)        99, 

626 
Inhabitants   of  Andover  v.    Sutton   (12 

Met.  182)  672 

In  re  Wright  (1  Ad.  &  El.  621)  73 

Ireland  v.  Elliott  (5  Iowa,  478)  639 

Ireland's  Case  (6  Mod.  101)  449 

Irving  V.  Greenwood  (1  Car.  &  P.  350)       423 
y.  Manning  (6  C.  B.  391)  283 

Irwin  V.  Dearmain  (11  East,  23)  631,  632,  633 
i;.  Dixon  (9  How.  10)  153 

Isaac  Newton,  The  (1  Abbott's  Adm.  11, 

588)  242,  432,  436 

Isbell  V.  N.  Y.  &  N.  H.  R.  R.  Co.  (27 

Conn.  393)  534 

Israel  v.  Douglass  (1  H.  Bl.  243)  37 

Ives  V.  Carter  (24  Conn.  392)  106 

V.  Humphreys  (1  E.  D.  Smith,  196)    516, 

613 

t'.  Van  Eppes  (22  Wend.  155)  499 

Iveson  V.  Moore  (1  Salk.  15)  151 

Ivey  V.  McQueen  (17  Ala.  408)  146,  526 


Jack  V.  McKee  (9  Barr  [Penn.l,  235)  206,  207 
Jacks  V.  Bell  (3  Car.  &  P.  316)  524 

Jackson's  Ex'rs  v.  HoUidav's  Adm'r  (3 

Monr.  363)  *  655 

Jackson  ex  dem.  Clark  v.  O'Donaghy  (7 

Johns.  247)  140 

V.    Covert's  Adm'rs    (5    Wend. 

139)  668 

V.  Davenport  (18  Johns.  295)  130 
V.  Hopperton   (16  C.  B.  [N.  S.] 

829)  626 

V.  Loomis  (4  Cow.  168)  136 

V.  Pesked  (1  Maul.  &  S.  234)  15L 
V.  Schmidt  (14  La.  Ann.  806)  532 
V.  The  Julia  Smith  (6  McLean, 

484)  397 

V.  The    Julia   Smith   (1   Newb. 

Adm.  R.  61)  397 

V.  Wood  (24  Wend.  443)         135,  137 

Jacob  V.  City  of  Louisville  (9  Dana,  114)    666 

Jacobs  V.  Hoover  (9  Minn.  204)  639 

Jacoby  v.  Laussatt  (6  Serg.  &  R.  300)         566 


TABLE    OF    CASES. 


xliii 


PAGE 

James  v.  Biddington  (6  Car.  &  P.  589)        635 

i;.  Campbell  (5  Car.  &  P.  372)  518 

V.  Mor<ran  (1  Levinz,  111)  231 

V.  Tutney  (Cro.  Car.  497,  532)  578 

Jansen  v.  Ball  (6  Cow.  628)  425 

V.  Hilton  (10  Johns.  549)  347 

Jaquith  v.  Hudson  (5  Mich.  123)  467 

Jarvis  i;.  Manlove  (5  Harring.  Del.  452)     638 

V.  Eogers  (15  Mass.  389)    419,  556,  558 

Jefcoat  V.  Knotts  (11  Rich.  L.  [S.  C]  649  ; 

13  Rich.  L.  [S.  C]  50)  145,  516,  529 

Jeffers  v.  Johnson  (1  Zabr.  73)  351 

Jefterson  v.  Bishop  of  Durham  (1  Bos.  & 

P.  120;  Story's  Eq.  Jurisp.  §  909)  157 

Jeffery  v.  Bastard  (4  Adol.  &  El.  823)         602 
Jeffrey  u.  Bigelow  (13  Wend.  518)  98 

Jellinghaus   v.  The  N.  Y.   Ins.    Co.  (4 

Sandf.  18)  397 

Jenkins  v.  Betham  (15  C.  B.  168)        213,  214 
V.  Hopkins  (8  Pick.  346)  186 

V.  McConico  (26  Ala.  213)      552,  567 
V.  Parkhill  (25  Ind.  473)  454 

V.  Troutman  (7  Jones  L.  [N.  C] 

169)  596 

Jennings  v.  Camp  (13  Johns.  94)  237 

V.  Johnson  (17  Ohio,  154)  581 

V.  Loring  (5  Ind.  250)  53 

V.  Maddox  (8  B.  Monr.  430)         540 

Jermaine  v.  Waggoner  (1  Hill,  279)  121 

Jervis  v.  Lucas  (Style,  345 )  705 

Jesser  v.  Gifford  (4"Burr.  2141)  150 

Jestons  V.  Brooke  (2  Cowp.  793)  222 

Jeter  v.  Glenn  (9  Rich.  L.  374)  336 

Jewell  V.  Schroeppel  (4  Cow.  564)        240,  242 

Jewett  V.  Lawrenceburgh  &  U.  M.  R.  R. 

Co.  (10  Ind.  539)  206 

V.  Whitney  (43  Me.  242)  48 

Joan  V.  Shield's  Lessee  (3  Har.  &  McH. 

7)  130 

Johnson  v.  Arnold  (2  Cush.  46)  93 

V.  Blank,  Ex'r  (34  Mo.  255)  330 

V.  Britton  (23  Ind.  105)  195 

17.  Courts  (3  Har.  &  McH.  510)     145 
V.  Gilfillan  (8  Minn.  395)  320 

V.  Hannahan  (3  Strobhart,  425)    526 
V.  Jenkins  (24  N.  Y.  252)  422 

V.  Johnson  (2  La.  Ann.  67)  334 

V.  Jones  (16  Mo.  494)  512 

V.  Kittredge  (17  Mass.  76)  672 

V.  Marshall  (34  Ala.  522)  552 

V.  Mullin  (12  Ohio  St.  10)  686 

V.  Nyce  (17  Ohio  St.  66)  182 

V.  Stear  (33  L.  J.  [N.  S.]  C.  P. 

130;  15  C.  B.  [N.  S.]  330)   419, 
556 
V.  Sumner  (1  Mete.  172)  549 

V.  Weed  (9  Johns.  310)  358 

v.  Weedman  (4  Scamm.  495)         526 
V.  Wing  (3  Mich.  163)  670 

Johnston  v.  Caulkins  (1  Johns.  Cas.  116)  423 
V.  Crawford  (Phillips  L.  R.  [N. 

C]  342)  529,  639 

Jolly  V.  Single  (16  Wise.  280)  86 

V.  The  Terre  Haute  Drawbridge  Co. 

(6  McLean,  237)  536 

Jones  V.  Allen  (1  Head  [Tenn.],  62o;  542 

V.  Baker  (7  Cow.  445)  654 

r.  Boyce  (1  Stark.  493)  «0,  95 


PAQE 

Jones  V.  Bradford  (25  Ind.  305)  369 

V.  Bright  (3  Moore  &  P.   155;  5 

Bing.  .533)  328 

V.  Brooke  (4  Taunt.  464)  277,  362 

V.  Chamberlain  (30  Vt.  196)  295 

V.  Deyer  (16  Ala.  221 )  508 

V.  Doles  (3  La.  Ann.  588)  253,  584 

V.  Dyke  (Bab.  on  Auct.  —  3  L.  L. 

[N.     S.]— 184;     Sugden    on 

Vendors,  1078)  197,  392 

i;.  Gilbert  (13  Conn.  507)  602 

V.  Gooday  (8  Mees.  &  W.  146)  145, 

622,  623 

V.  Jones  (2  Swan,  605)  238 

V.  Judd  (4N.  Y.  4in  235 

V.  Lewis  (9  Dowl.   [P.  C]  143)      115, 

516 
V.  Lowell  (35  Me.  538)  620 

V.  Mallory  (22  Conn.  386)  434 

V.  Marsh  (22  Vt.  144)  238 

r.  Morehead  (1  Wall.  155)  675 

V.  N.  Y.  &  Erie  R.  R.  Co.  (29  Barb. 

633)  402 

V.  Pearce  (Webster's  P.  C.  122)         674 
V.  Richardson  (10  Mete.  481)  698 

V.  Scriven  (8  Johns.  353)  495 

V.  Steamship  Cortes  (17  Cal.  487) 

224,  226,  574 

V.  Van  Patten  (3  Ind.  107)        218,  229 

V.  Wolcott  (2  Allen,  247)  331 

V.  Woodbury  (11  B.  Monr.  167)        244 

Jordan  v.  Lewis  (2  Stewart,  Ala.  426)         477 

Josev  V.  Wilmington  &  M.  R.  R.  Co.  (11 

Rich.  L.  [S.  C]  399)  615 

Joshua  Barker,  "The    (1  Abbott's  Adm. 

215)  398,  536 

Joslingr.  Inane  (6  Hurl.  &  N.  512;  30 
L.  J.  [N.  S.]  Exch.  78 ;  4  L.  T.  R.  [N. 
S.J251)  292 

Joy  V.  Hopkins  (5  Denio,  84)  697 

Joyal  V.  Barney  (20  Vt.  154)  587 

Jubbv.  HullDock  Co.  (9  Q.  B.  443)  665 

Judd  V.  Dennison  (10  Wend.  512)  498 

Justice  V.  Mendell  (14  B.  Monr.  12)  542 


K. 


Kaley  v.  Shed  (10  Mete.  317)       569,  572,  640 
Kane  v.  Johnston  (9  Bosw.  154)  613 
V.  Sanger (14  Johns.  89)  174 
«.  Smith  (12  Johns.  156)  436 
Kannonu.  Pillow  (7  Humph.  281)  160 
Kaskaskia  Bridge  Co.  v.  Shannon  (1  Gil- 
man,  15)  488 
Kavanagh  v.  City  of  Brooklyn  (38  Barb. 

232)  120 

Kaye  v.  Waghorne  (1  Taunt.  428)  684 

Keaggy  v.  Kite  (12  111.  99)  552 

Kearney  v.  Holmes  (6  La.  Ann.  373)  104 

V.  The  Boston  &  Worcester  R. 

R.  Co.  (9  Cush.  108)  648 

Keates  v.  Cadogan  (2  Eng  L.  &  E.  318)  328 

Keeler  v.  Wood  (30  Vt.  242)  178 
Keen  v.  Priest  (4  Hurl.  &  N.  236 ;  28  L. 

J.  [N.  S.]  Exch.  157)  622 

Keene  i'.  Dilke  (4  Exch.  388)  622 

Keenholts  v.  Becker  (3  Denio,  346)  111 


xliv 


TABLE    OF    CASES. 


Keir  v.  Lecman  (G  Q.  B.  308) 
Kellogg  V.  Brown  (9  Johns.  300) 
V.  Curtis  (9  rick.  534) 
V.  Dcnslow  (14  Conn.  411 
V.  Hickok  (1  Wend.  521) 
Kelly  V.  Cunningham  (36  Ala.  78) 


PAOE 

30 
599 
476 
508 
446 
324 


V.  Dutch  Church  of  Schenectady  (2 

Hill,  10.5,  116)  174,  175 


V.  Low  (18  Me.  244) 

V.  Partington  (5  Barn.  &  Ad.  645) 

V.  Sherlock  (1  L.  K.  [Q.  B.]  686) 


193 
65 
709, 
710 
383 
236 


V.  Smith  (1  Blatchf.  C.  C.  R.  290) 

V.  Town  of  Bradford  (33  Vt.  35) 

Kemble  v.  Farren  (6  Bing.   141)      464,465, 

466,467,  476 
Kemp  V.  Finden  (12  Mees.  &  W.  421)  369 
Kendall  v.  Lewiston  Water  Power   Co. 

(36  Me.  19)  435 

V.  Stone  (5  N.  Y.  [1  Seld.]  14)     631 

V.  Stone  (2  Sandf.  269)  524,  631 

Kendrick  v.  McCrary  (11  Ga.  603)  631 

Kennard  v.  Burton  (25  Me.  39)  535 

Kennedy  v.  North  Mo.  R.  R.  Co.  (36  Mo, 

351) 

V.  Strong  (14  Johns.  128) 


533 

441, 

448,  570 

549 


i;.  Whitwell  (4  Pick.  466 
Kent  V.  Bonzey  (38  Me.  435)  630 

V.  Ginter  (23  Ind.  1)  301 

V.   Hudson   River   R.    R.    Co.    (22 

Barb.  278)  402 

V.  Kelway  (Lane  70)  587 

Kenworthy  v.  Hopkins    (1    Johns.  Cas. 

108)  273 

Kerbey  v.  Denby  (1    Mees.  &  W.  336; 

Tyrwh.  &  Gr.  688)  '       604 

Kerley  v.  Richardson  (17  Ga.  602)  182 

Kerr  y.  Shaw  (13  Johns.  236)  168 

Kerwhaker  v.  The  Cleveland,  Columbus 

&  Cincinnati  R.  R.  Co.  (3  Ohio  St.  172)  154, 

534 
Kettle  V.  Harvey  (21  Vt.  301 )  236,  238 

Key  V.  Key  (3  Head  [Tenn.],  448)  197 

Keyes  v.  Devlin  (3  E.  D.  Smith,  518)        638, 

648 
V.  Western  Vt.  Slate  Co.  (34  Vt. 

81)  212,488,503 

Kid  V.  Mitchell  (1  Nott  &  McC.  334)  552 

Kiddu.  Belden  (19  Barb.  266)  242 

Kidder  v.  Barker  (18  Vt.  454)  593 

Kier  v.  Peterson  (41  Penn.  357)  559,  623 

Kilmore  v.  Abdoolah   (27  L.  J.  [Exch.] 

307)  690 

Kimball  v.  Kennebec  &  Portland  R.  R. 

Co.  (35  Me.  255)  663 

Kimball,  Ex'r,  v.  Connoly  (6  Am.  Law 

Reg.  [N.  S.]  598)  609 

Kimel  v.  Kimel  (4  Jones  L.  121)  44,  45 

Kimpton  v.  Bronson  (45  Barb.  618)  261 

King  V.  Boston  (7  East.  481,  cited)     334,  511 

V.  Brown  (2  Hill,  485)  207 

V.  Gilson's  Adm'x  (32  HI.  348)  187 

V.  Gray  (17  Tex.  62)  203 

V.  Ham  (6  Allen,  298)  564 

V.  Kersey  (2  Ind.  402)  422 

V.  King  (3  Johns.  Ch.  552)  9 

u.  Orser  (4  Ducr,  431)  545 


PAGE 

King  V.  Phillips  (Peters  C.  C.  350)  362 

V.  Richards  (6  Whart.  418)  570 

?;.  Root  (4  Wend.  113,  139)  523 

V.  Steiren  (44  Penn.  99)  231,  389 

V.  The  Rochdale  Canal  Co.  (6  Eng. 

L.  &E.  241)  687 

V.  Woodbridgc  (24  Vt.  565)  402 

King,  The,  v.  The  Bank  of  England  (2 

Doug.  524)  420 

V.  Commissioners  of  Sewers 

(8  Barn.  &  C.  355)  120 

V.  Inhabitants  of  Scammon- 

den  (3  T.  R.  474)  183 

V.  Severn  &  Wye  R.  R.   Co. 

(2  Barn.  &  Aid.  646)         120 
Kingdom  v.  Cox  (5  C.  B.  522)  237 

Kinghorne  v-  Montreal  Tel.  Co.  (18  U.  C. 

60)  413 

Kingsbury  v.  Smith  (13  N.  H.  122)     105,  189 
Kinney  V.  Crocker  (18  Wise.  74)  649 

i;.  Watts  (14  Wend.  38)  174,175 

Kintz  V.  McNeal  (1  Denio,  436)  151 

Kip  V-  Brigham  (6  Johns.  158;  7  Johns. 

168)  347,  349,  367 

Kipp  V.  Wiles  (3  Sandf.  585)  292 

Kirksey  v.  Jones  (7  Ala.  [N.  S.]  622)         454 
Kist  V.  Atkinson  (2  Camp.  63)  511 

Kitchenman  v.  Skeel  (3  Exch.  49)  686 

Klock  V.  Robinson  (22  Wend.  157,  160)      444 
Knapp  V.  Banks  (2  How.  73)  683 

V.  Maltby  (13  Wend.  587)  473 

Kniffen  v.  McConnell  (30  N.  Y.  285)  422,  634 
Knight  V.  Egerton  (12  Eng.  L.  &  E.  562  ; 

S.  C.  7  Exch.  407)  622 

V.  Foster  (39  N.  H.  576)  529 

V.  Hughes  (3  Car.  &  P.  467  ;  M. 

&  M.  247)  369 

V.  McLean  (3  Br.  Ch.  R.  496)         482 
V.  Mitchell  (3  Brevard,  506)  435 

V.  Wilcox  (18  Barb.  212;  14  N. 

Y.  413)  89 

Knowles  v.  Nunns  (14  L.  T.  R.   [N.  S.] 

592)  98,  324,  333 

Knox  V.  Hook  (12  Mass.  329)  198 

V.   North   Carolina  R.  R.  Co.  (6 

Jones  L.  [N.  C]  415)  424 

Kohne  v.  The  Ins.  Co.  of  N.  Amer.  (1 

Wash.  C.  C.  R.  93)  567 

Kolb  V.  Bankhead  (18  Tex.  228)  529 

Koon  V.  Greenman  (7  Wend.  123)  243 

Kortright  v.  Buff.  Com.  Bank  (20  Wend. 

91)  419 

Kortz  V.  Carpenter  (5  Johns.  120)  168 

Kountz  V.  Brown    16  B.  Monr.  577)      528, 

707 
Kower  v.  Gluck  (33  Cal.  401)  145 

Kroener  v.  Colhoun  (52  Penn.  9)  261 

Krom  V.  Schoonmaker  (3  Barb.  647)      517, 

518 
Kugler  V.  Wiseman  (20  Ohio,  361 )  243 

Kuntzman  v.  Weaver  (20  Penn.  422)  319 

Kupfer  V.  Bank  of  Galena  (34  111.  328)       262 
Kyle  V.  Laurens  R.  R.  Co.  (10  Rich.  L. 
382)  397 


L. 

La  Amistad  de  Rues  (Wheat.  385) 


70 


TABLE   OF    CASES. 


xlv 


PAQB 

Lacey  v.  Straughan  (11  Iowa,  258)  320 

Laclouch  V.  Towle  (3  Esp.  Cas.  114)  570 

Lacour  v.  Mayor,   &c.  of  New  York   (3 

Duer,  406)  87 

Lacroix  v.   Inhabitants  of  Medway  (12 

Mete.  123)  668 

Ladd  V.  Lord  (36  Vt.  194)  333 

La  Farge  v.  Halsev  (4  Abbott's  Pr.  397  ; 

1  Bosw.  171)      "^  505 

Laflin  v.  Willard  (16  Pick.  64)  49,  594 

Laing  i;.  Fidgeon  (6  Taunt.  108)  328 

i>.  Stone  (2  Man.  &Ry.  561)  275 

Laird  v.  Pirn  (7  Mees.  &  W.  474)  204 

Lake  v.  Campbell  (5  L.  T.  R.   [N.  S.] 

582)  91 

Lakeman  v.  Grinnell  (5  Bosw.  625)  395 

Lally  V.  Wise  (28  Cal.  539)  446 

Lamb  v.  Stone  (11  Pick.  527)  26,  27 

Lambert  v.  Bessey  (Sir  T.  Raym.  421 )  517 
Lambertville,  Town  of,  v.   Clevinger  (1 

Vroom  [N.  J.],53)  662 

Lamerson  v.  Marvin  (8  Barb.  9)  495,  498,658 
Lamkin  v.  Crawford  (8  Ala.  [N.  S.]  153)  393 
Lampman  v.  Cochran  ( 1 9  Barb.  388  ;  1 6 

N.  Y.  275)  455,465 

Lampon  v.  Corke  (5  Barn.  &  Aid.  606)  183 
Lancashire   &   Yorkshire   R.    R.    Co.   v. 

Evans  ( 1 9  Eng.  L.  &  E.  295)  665 

Landis  v.  Shanklin  (1  Ind.  92)  630 

Landsberger  v.   Magnetic  Tel.   Co.    (32 

Barb.  530)  409,  410 

Lane,  Adm'x,  V.  Lantz  (27  Md.  211)  320 

Lane,  County  of,  v.  State  of  Oregon  (Su- 
preme Court  U.  S.)  265 
Lane  v.  Cole  (12  Barb.  680)  669 
V.  Crombie  (12  Pick.  177)  535 
V.  Glucka'uf  (28  Cal.  288)                     263 
V.  Hill  (18  Q.  B.  252)  50 
V.  Hitchcock  (14  Johns.  213)               614 
Lang  V.  Hopkins  (10  Ga.  37)                        707 
Langdon  v.  Bullock  (8  Ind.  341)                  705 
V.  Godfrey  (4  Fost.  &  F.  445)       588 
Lange  v.  Werk  (2  Ohio  St.  519)                  481 
Langford  v.  Owsley  (2  Bibb,  215)                 113 
V.  Tyler's  Adm'r  (1  Salk.  113  ; 

6  Mod.  162)  313 

Langridge  v.  Levy  (2  Mees.  &  W.  519  ; 

Aff.  4  Mees.  &  W.  337)  99 

Lannen  j;.  The  Albany  Gas-light  Co.  (46 

Barb.  264)  534 

Lansing  v.  Goelet  (9  Cow.  346)  418 

V.  Smith  (8  Cow.  146;  4  Wend. 

9)  29,  121,  153 

V.  Wiswall  (5  Denio,  213)        29,  153 
Lantry  v.  Parks  (8  Cow.  63)  237 

Lanusse  v.  Barker  (3  Wheat.  101,  147)  265 
Laraway  v.  Perkins  (10  N.  Y.  371)  206,  677 
Lamed  v.  Buffington  (3  Mass.  546)  517 

Larrabee  v.  Lumbert  (36  Me.  440)  114,  129 
Latham  v.  Brown  (16  Iowa,  118)  563 

Lathrop  v.  Atwood  (21  Conn.  117)  342 

Laton  V.  King  (19  N.  H.  280)  242 

Lattin  v.  Davis  (Hill  &  D.  Supp.  9)  291,  320 
Laugher  v.  Pointer  (5  Barn  &  C.  547)  372 
Laughlin  v.  Harvey  (52  Penn.  9)  261 

Laurent  v.  Chatham  Fire  Ins.  Co.  (1  Hall, 

41)  284 

V.  Vaughan  (30  Vt.  90)  395,  401 


PAGE 

Law  V.  Ai'cher  (2  Kern.  77)  342 

Lawless  1;.  Collier's  ICxp.  (19  Mo.  480)        189 

Lawrence  v.  Chase  (.54  Me.  196)  200,  228 

V.  Cowles  (13  111.  577)  458 

V.  Ilousatonic   R.  R.   Co.   (29 

Conn.  390)  648 

V.  Kemp  (1  Duer,  363)  54 

V.  Parker  (1  Mass.  191)  476 

w.  Rice  (12  Mete.  .535)  49 

V.  The  Great  Northern  Railway 

Co.  (16  Q.  B.  643)  147 

V.  Wardwell  (6  Barb.  423)      76,  93, 

416 
Lawson's  Adm'r  v.  Lay's  Ex'r  (24  Ala. 

184)  566 

Lawton  v.  Fitchburgh  R.  R.  Co.  (8  Cush. 

230)  213 

V.  Sweeny  (8  Jur.  964)  543 

Leach  v.  Thomas  (2  Mees.  &  W.  427)  687 

Leather  Cloth  Co.  v.  Hirschfield  (1  L.  R. 

Eq.  299)  675 

Leavenworth  v.  Delafield  (1  Caines,  573)    283 

Leavitt  v.  Lamprey  (13  Pick.  382)  140 

Le  Branthwait  v.  Halsey  (4  Halst.  3)  446 

Le  Bret  v.  Pappillon  (4''East,  503)  119 

Lecroy  v.  Wiggins  (31  Ala.  13)  220 

Ledbetter  v.  Morris  (3  Jones  L.  543)  44 

Lediard  v.  Boucher  (7  Car.  &  P.  1)  513 

Ledyard  v.  Jones  (7  N.  Y.  [3  Seld.]  550)    592 

Leey.  Clark  (1  Hill,  56)  357 

V.  Grinnell  (5  Duer  [N.  Y.],  400)         280 

r.  Levy  (4  Barn.  &  C.  390)  119 

V.  Lingard  (1  East,  401)  428 

V  Milner  (2  Mees.  &  W.  825)  668 

V.  Riley  (34  L.  J.  [N.  S.]  C.  P.  212)      95 

V.  Wilcocks  (5  Serg.  &  R.  48)  265 

V.  Woolsey  (19  Johns.  319)  638 

Leech  v.  Baldwin  (5  Watts,  446)  512 

Leffingwell  v.  Elliott  (10  Pick.  204)    105,  116, 

193 

Legare  v.  Eraser  (3  Strobh.  337)  216 

Leggett  u.  Baker  (13  Allen,  470)  641 

V.  Cooper  (2  Stark.  103)  511 

V.   Mut.  L.  Ins.  Cd>.    (50  Barb. 

616)  480 

V.  Steele  (4  Wash.  C.  C.  R.  305)  141 
Legh  V.  Lewis  (1  East,  391 )  478 

Le  Grange  v.  Hamilton  (4  T.  R.  613 ;  2 

H.  Bl.  144)  446 

Le  Guen  v.  Gouverneur  (1   Johns.  Cas. 

436)  383 

Lehigh  Bridge  v.  Lehigh  Coal  &  Naviga- 
tion Co.  (4  Rawle,  9)  121 
Lehman  v.   City  of  Brooklyn   (29  Barb. 

234)  647 

Leigh   V.   Patterson    (8   Taunt.   540;    2 

Moore,  588)  294,  322 

Leland  v.  Stone  (10  Mass.  459)     219,  232, 517 

V.  Tousey  (6  Hill,  328)     129,  137,  679 

Lentz  V.  Choteau  (42  Penn.  435)  68 

Leonard  v.  Allen  (11  Cush.  241)  630 

V.  Leonard  (4  Mass.  533)  140 

V.  Schenck  (3  Mete.  357)  668 

Le  Peintur  v.  Southeastern  R.  Co.  (2  L. 

T.  R.  [N.  S.]  170)  80 

Le  Roy  v.  United  Ins.  Co.  (7  Johns.  343)  283 
Letcher  v.  Woodson  (1   Brock.  C.  C.  R. 
212)  435 


xlvi 


TABLE    OF    CASES. 


Lethbridge  v.  Myttou    (2   Barn.  &  Ad. 

772)  116,194,344 

Letton  V.  Young  (2  Mete.  [Ky.]  558)  707 

Leven  v.  Young  (1  Murr.  350,  384)  650 

Levitzky  v.  Cauning  (33  Cal.  299)        174,  631 
Levy  t;.  Taylor  (24  Md.  282)  718 

Lewers  v.  Earl  of  Shaftesbury  (2  L.  R. 

Eq.  270)  9 

Lewis  V.  Black  (27  Miss.  425)  707 

V.  Campbell  (8  Taunt.  715)  209 

V.  Chapman  (19  Barb.  252)  630 

V.  Cosgrave  (2  Taunt.  2)  493,  496 

V.  Harris  (31  Ala.  689)  190 

u.  Lee  (15  Ind.  499)  257 

V.  Morland  (2  Barn.  &  Aid.  56)        596 

V.  Peachey  (1  Hurl.  &  C.  518)  111 

V.  Peake  (7  Taunt.  153)  326 

V.  The  N.  Y.  Central  R.  R.  Co.  (N. 

Y.  Transcript,  Oct.  2d,  1867; 

6  Am.  Law  Reg.  [N.  S.]  703)    262 

V.  Trickey  (20  Barb.  387)  697 

V.  Witham  (2  Strange,  1185)  686 

Liber  v.  Parson's  Ex'rs  (1  Bay,  19)  180 

Lick  V.  Faulkner  (25  Cal.  404)  261 

Lienow  v.  Ritchie  (8  Pick.  235)  143,  150 

Liford's  Case  (11  Coke,  51)  489 

Ligat  V.  The  Commonwealth  (19  Penn. 

456)  664 

Likes  V.  Baer  (8  Iowa,  368)  199 

Lillard  v.  Whitaker  (3  Bibb,  92)  549 

Limpus  V.  The  State  (7  Blackf.  43)  601 

Lincoln  v.  Blanchard  (17  Vt.  464)  352 

V.   Saratoga  &  S.  R.  R.  Co.  (23 

Wend.  425)         90,  106,  651,  696 
Linden  v.  Hepburn  (3  Sandf.  668)  39 

Linder  v.  Lake  (6  Iowa  [Clarke],  164)  52, 

195 
Linningdale    v.  Livingston    (10    Johns. 

36)  240 

Linsley  v.  Bushnell  (15  Conn.  225)      106,  522 
Liotard  v.  Graves  (3  Caines,  226)  436 

Lipe  V.  Eisenlerd  (32  N.  Y.  229)  631 

Lisk  V.  Mathis  (11  La.  Ann.  418)  104 

Lister  v.  Lobley  (7  Adol.  &  E.  124)  665 

Little  V.  Little  (13  Pick.  426)  351 

V.  Meachum  (1  Tyler,  438)  130 

V.  Tingle  (26  Ind.  168)  613 

Littlefield  t;.  Biddeford  (29  Me.  310)  670 

Littlehale  v.  Dix  (11  Cush.  364)  639 

Littlejohn  v.  Wilcox  (2  La.  Ann.  620)         453 
Little  Miami  R.  R.  Co.  v.  Naylor  (2  Ohio, 

235)  664 

V.     Whitacre     (8 

Ohio,  590)  663 

Livermore  v.  Rand  (6  Post.  85)  437 

Livingston  v.  Adams  (8  Cow.  175)  121 

V.  Miller  (11  N.  Y.  [1   Kern.] 

80)  437 

V.  Platner  (1  Cow.  175)  671 

V.  Reynolds  (26  Wend.  115)       158 
V.  Superior  Court  (10  Wend. 

545)  452 

Lloyd  r.  Goodwin  (12  Smedes  &  M.  223)    583 
Lobdell  V.  Baker  (3  Mete.  469)  267 

V.  Inhabitants  of  New  Bedford  (1 

Mass.  153)  671 

Lock  V.  Ashton  (12  Q.  B.  871)  86,  650 

V.   Furze   (34  L.  J.   [N.  S.]   C.  P. 


201  ;  19  C.  B.   [N.   S.J  96  ;  1 
L.  R.  [C.  P.]  441)        69,  167,  176, 
196 
Locke  V.  Garrett  (16  Ala.  698)  570 

Lockier  v.  Paterson  (1  Car.  &  Kir.  271)  532 
Loder  v.  Kckule  (3  C.  B.  [N.  S.]  128)  306 
Lodge  V.  Spooner  (8  Gray,  166)  265 

Logan  V.  Moulder  (1  Ark.  323)  182 

Loker  v.  Damon  (17  Pick.  284)  102,  145 

London  &  Brighton  R.  Co.  v.  Fairclough 

(3  Scott's  N.  R.  69,  88)  443 

London  Packet,  The  (5  Wheat.  122,  132)  108 

Long  V.  Lamkin  (8  Cush.  361)  572 

V.  Towl  (42  Mo.  545)  718 

Longridge  v.  Dorville  (5  Bam.  &  Aid. 

117)  468 

Longstreet  v.  Ketcham  (1  Coxe,  170)  130 

Lonsdale  v.  Church  (2  T.  R.  388)        453,  482 

Loomis  V.  Bedell  (11  N.  H.  74)  180,  186 

V.  Eagle  Bank  of  Rochester  (10 

Ohio  St.  327)  514 

V.  Wadhams  (8  Gray,  557)  195 

Loosemore  v.  Radford  (9  Mees  &  W.  657)  344, 

566 

Loosey  v.  Orser  (4  Bosw.  391)  591 

Lord  V.  Gaddis  (9  Iowa,  265)  465 

r.  Strong  (6  Mich.  61)  245 

V.  The  Mayor,  &c.,  of  New  York  (3 

HiU,  426)  445 

Lord   Gower  v.  Heath    (Barnes'    Notes, 

445)  710 

Lord  Lonsdale  v.  Church  (2  T.  R.  388)  458 
Lord  Sondes  v.  Fletcher  (5  Barn.  &  Aid. 

835)  226,  477 

Lord  Townsend  v.  Hughes  (2  Mod.  150)  710 
Loring  v.  Gurney  (5  Pick.  16)  316 

Loud  V.  Merrill  (47  Me.  351 )  271 

Louis   V.   Steamboat  Buckeye  (1  Handy, 

150)  395,  396 

Louisville  &  Portland  R.  R.  Co.  v.  Smith 

(2  Duvall  [Ky.],  556)  532,  533 

Love  V.   The  Captain,  &c.,  of  the  Mont- 
gomery (10  La.  Ann.  113)  537 
Lovejoy  v.  Hutchins  (23  Me.  272)  605 
V.  Morrison  (10  Minn.  136)  416 
Lovett  V.  Pell  (22  Wend.  369)  38 
Low  V.  Archer  (12  N.  Y.  [2  Kern.]  277)     342 
V,  Nolte  (16  111.  475)                              480 
Lowden  v.  Goodrich  (Peake's  C.  46)            659 
Lowe  V.  Peers  (4  Burr.  2225,  2229)     459,  462, 

482 

V.  Sinklear  (27  Mo.  308)  241 

r.  Steele  (15  Mees,  &  W.  380)  513 

V.  Waller  (Doug.  736,  740)        260,  429 

Lowell,  City  of,  v.  French  (6  Cush.  223)     663 

V.  Parker  (10  Mete.  309)  347, 

616,  640 

Lowell,  Inhabitants  of,  v.  B.  &  L.  R.  R. 

Co.  (23  Pick.  24)  625 

Lowell  V.  Lewis  (1  Mason  C.  C.  182)  674 

Lowenstein  v.  Chappell  (30  Barb.  241)  .  76 
Lowthcri).  The  Commonwealth  (1  Hcnn. 

&  M.  202)  181 

Lucas  V.  Hawkins  (8  Blackf.  337)  667 

V.  The  New  York  Central  R.  R. 

Co.  (21  Barb.  245j  647 

V.  The  Thomas  Swan,  (6  McLean, 

282)  537 


TABLE    OF    CASES. 


xlvii 


Co.   (9 


&    Aid. 


Lucas  V.  Trumbull  (15  Gray,  306) 
Luckey  v.  lloberts  (25  Conn.  486) 
Ludlow  V.  Village  of  Yonkers  (43  Barb 

493)  88 

Ludwig  V.  Meyre  (5  Watts  &  S.  435) 
Lukin  V.  Godsall  (Peakc  Ad.  Cas.  15) 
Luling  V.  Atlantic  Mutual  Ins.  Co.   (30 

How.  Pr.  69  ;  45  Barb.  510) 
Lutes  V.  Alpaugh  (3  Zabr.  165) 
Luther  v.  Winnisimmct  Manuf, 

Gush.  171) 
Luxmore  v.  Robson    (1    Barn 

584) 
Lylc  V.  Barker  (5  Binn.  457) 

V.  Clason  (1  Caines,  581) 
Lvles  V.  Lyles  (6  Har.  &  J.  273) 
Lynch  v.  Davis  (12  How.  P.  R  323) 
V.  De  Viar  (3  Johns.  Cas.  303) 
V.  Knight  (5  L.  T.  R.  [N.  S.]  291) 
91 
V.  Nurdin  (1  Q.  B.  29) 
Lynd  v.  Picket  (7  Minn.  184) 
Lynde  v.  Thompson  (2  Allen,  456) 
Lyon  V.  Northrup  (17  Iowa,  314) 
Lysney  v.  Selby  (2  Ld.  Raym.  1118) 

M. 


PAGE 
718 

607 

145 
395 
143 


262,  717 
580 


147 


211 
558 
687 
268 
647 
433 
65, 
626 
103',  538 
699 
479 
347 
656 


Macarty  v.  Barrow  (2  Strange,  949)  274 

Mack  V.  Patchin  (29  How.  Pr.  20)  177 

Macrae  v.  Clarke  (1  L.  R.  [C.  P.]  403)      591, 

595 
Macy  V.   City  of   Indianapolis   (17  Ind. 

267)  666 

Mad  River  and  Lake  Erie  R.  R.  Co.  v. 

Fulton  (20  Ohio,  318)  692 

Magee  v.  Holland  (3  Dutch.  [N.  J.]  86)     526, 

532,  645 


(24  N. 


Magrane  v.  Archbold  (1  Dow,  107) 
Maguire  v.  Woodside  (2  Hilt.  59' 
Mahan  v.  Brown  (13  Wend.  261 

V.  Ross  (18  Mo.  121) 
Maher  i-.  Riley  (17  Cal.  415) 
Mahler,   Adra'x,   v.   Norwich    &    N.    Y 

Trans.  Co.  (45  Barb.  226) 
Mahon  v.  N.  Y.  Central  R.  R.  Co. 

Y.  658) 
Mahoney  v.  Young  (3  Dana,  588) 
Main  v.  Gordon  (7  Eng.  651) 

V.  King  (10  Barb.  59) 
Main  waring  v.  Brandon  (8  Taunt.  202) 
Major  V.  Dunnavant  (25  111.  262) 

V.  Pulliam  (3  Dana,  582) 
Malachy  v.  Soper  (3  Bing.  [N.  C]  371) 
Malaun's  Adm'r  i;.  Ammon    (1     Grant's 

Cas.  123) 
Maiden  v.  Tyson  (11  Q.  B.  292) 
Mallory  v.  Lord  (29  Barb.  454) 
Mallough  V.  Barber  (4  Camp.  150) 
Malone  v.  Murphy  (2  Kansas,  250) 
Maneely  v.  McGee  (6  Mass.  143) 
Mangam  v.  Brooklyn  City  R.  R.  Co.  (36 

Barb.  230) 
Mangham  v.  Reed  (11  Ga.  137) 
Manice  v.  Mayor,  &c.  of  New  York  (8  N. 

Y.  [4  Seld.j  120) 
Manley  v.  Field  (7  C.  B.  [N.  S.]  96) 


481 
389 
28 
512 
296 

646 


663 
141 
129,  697 
479 
392 
183 
529 
631 


206 
197 
313 
375 
531 
358 


Mann  v.  Eckford's  Ex'rs  (15  Wend.  502)    344 


534 
689 


664 
633 


Manning  v.  Monaghan  (28  N.  Y.  585)  C15 
Manvell  v.  Thomson  (2  Car.  &  P.  303)  633 
Manville  v.  McCoy  (3  Ind.  148)  242 

March  v.  Wright  (14  111.  248)  441 

Margaret,  The,  v.  The  Conestoga  (2  Wall. 

Jr.  116)  109 

Markers.  Miller  (9  Md.  338)  638 

Marlatt  v.  Clary  (20  Ark.  251)  326 

Marlborough,    Town   of,    v.    Sisson    (31 

Conn.  332)  247 

Marquart  v.  La  Farge  (5  Duer,  559)  177 

Marquis  of  Salisbury  v.  Great  Northern 

R.  Co.  (10  Eng.  L.  &E.  344)  664 

Marriott  v.  Stanley  (1  Man  &  Qr.  568)  538 
Marr's  Adm'r  y.  Prather  (3  Mete.   [Ky.] 

196)  270 

Marsh  v.  Billings  (7  Cush.  322)  47 

V.  New  York  &  Erie  R.  R.  Co.  (14 

Barb.  364)  535,  693 

V.  Richards  (29  Mo.  99)  242 

V.  White  (3  Barb.  518)  613 

Marshall,  ex-parte  (1  Atk.  262)  365 

Marshall  v.  Betner  (17  Ala.  833)  107,  643 

V.  Gantt  (15  Ala.  682)  326 

V.  Gunter  (6  Rich.  L.  419)  707 

V.  Haney  (4  Md.  498;  S.  C.  9 

Md.  194)  200,  205 

V.  New  York  Central  R.  R.  Co. 

(45  Barb.  502)  396 

V.  Simpson  (13  La.  Ann.  437)        507 

r.  Wood  (16  Ala.  806)  323 

Marston  v.  Hobbs  (2  Mass.  433)  168 

Martin,  Adm'r,  v.  Gordon  (24  Ga.  533)        180 

Martin  v.  Court  (2  T.  R.  640)  343 

V.  Franklin  (4  Johns.  124)        265,  273 

V.  Porter  (5  Mees.  &  W.  351)  156,  563, 

623, 624 

V.  Schoenberger  (8   Watts   &    S. 

367)  238 

u.Taylor(l  Wash.  C.  C.R.I)         476, 

485 
V.  Temperly  (4  Q.  B.  298)  373 

Martinez  v.  Gerber  (3  Scott  N.  P.  386)  96 

Marvin  v.  Dennison  (20  Vt.  662)  130 

Mary,  The  (9  Cranch,  126)  108 

Maryland,  State  of,  to  the  use  of  Mary 
Coughlan,  v.  Baltimore  &  Ohio  R.  R. 
Co.  (5  Am.  Law.  Reg.  [N.  S.]  397)         647 
Maryland,  State  of,  v.  Northern  Central 

Railway  Co.  (18  Md.  193)  488 

Marzetti  v  Williams  (1  Barn.  &  Ad.  415)     50 

Mason  v.  Callender  (2  Minn.  350)        439,  458 

V.  Franklin  (3  Johns.  202)  294 

V.  Inhabitants  of  Ellsworth  (32  Me. 

271)  648 

V.  Kennebec  &  Portland  R.  R.  Co. 

(31  Me.  215)  663 

V.  Lewis  (1  Greene  [Iowa],  494)       143 
Masters  v.  Town  of  Warren   (27    Conn. 

293)  648 

Masterton  v.  Mayor  of  Brooklyn  (7  Hill, 

62)  76,  116,  249,  416,  698 

Mathew  &   Cousins,  Assignees,  v.  Sher- 

well  (2  Taunt.  439)  565 

Mathews  r.  The  Howard  Ins.  Co.  (11  N. 

Y.  9)  278,  279 

V.  Bliss  (22  Pick.  48)  654 

Mattoon  v.  Pearce  (12  Mass.  406)  580 


xlviii 


TABLE   OF    CASES. 


PAGB 

Mauricet  v.  Brecknock  (2  Doug.  509)  710 
Max  V.  Roberts  (5  Bos.  &  P.  454)  255 

Maxwell  v.  Jameson  (2  Barn.  &Ald.  51) 

353,  354,  359 
V.  Parnell  (1  Irish  R.  [Com.  Law 

Series]  234)  331 

May  V.  Inhabitants  of  Princeton  (11  Mete. 

442)  535 

V.  The  Delaware  Ins.  Co.  ( 1 9  Penn. 

312)  279 

Maye  v.  Tappan  (23  Cal.  306)  624 

Maynard  v.  Newman  (1  Nevada,  271)  261 

Mayor  of  Albany  v.  Trowbridge  (5  Hill, 

71  ;  Aff'd  7  Hill,  429)  498,  505 

Mayor   &  Burgesses   of  Lyme   Regis  v. 

Henley  (1  Bing.  N.  C.  222)  29 

Mayor  of  Colchester  v.  Brooke  (7  Q.  B. 

339,  377)  30 

Mayor,  &c.,  of  Baltimore  v.  Brannan  (14 

Md.  227)  534 

Mayor,  &c.,  of  Baltimore  v.  Marriott  (9 

Md.  160)  534 

Mayor,    &c.,    of  New  York  v.  Furze    (3 

Hill,  612)  29 

Mayor,  &c.,  of  New  York  v.  Mabie   (14 
N.  Y.  [4  Kern.]  151  ;*  2  Duer,  401)      175, 

501 
Mayor,  tSbc,  of  New  York  v.  Pentz   (24 

"Wend.  668)  696 

McAfee  i;.  Crofford  (13  How.  447)  62,  528 
McAllister  v.  Douglas    (1   Cr.  C.  C.  R. 

241)  291 

V.  Reab  (4  Wend.  483)  499 

McAlpin  V.  Woodruff  (11  Ohio,  120)  182,  186 

V.  Lee  (12  Conn.  129)  508 

McAndrew  v.  Electric   Tel.    Co.    (17  C. 

B.  3;  33  Eng.  L.  &  E.  180)  408,  413 

McAneany  v.  Jewett  (10  Allen,  151)  54 

McArthur  v.  Seaforth  (2  Taunt.  257)  293 
McAulay  v.  Birkhead   (13    Ired.    L.  28) 

631,  634 
McAvoy  V.  Wright  (25  Ind.  22)  333 

McBride  v.  McLaughlin  (5  Watts,  375)  525 
McCarthy  v.  Guild  (12  Mete.  291)  92 

McCarty  v.  Beach  (10  Cal.  461)  51 

McCleary  v.  Edwards  (27  Barb.  239)  209 
McClelland  v.  Snider  (18  111.  58)  220,  243 
McClowry  v.  Croghan's  Adm'r'(31  Penn. 

22;  1   Grant's  Cas.  307)  177,  209,  214 

McClure  v   Dunkin  (1  East,  436)  482 

McClure's  Ex'rs   v.    Gamble    (27  Penn. 

288)  180 

McComb  V.  Reed  (28  Cal.  281)  263 

McConnel  v.  Kibbe  (33  111.  175)  44,  247 
McConnell's  Heirs  u.  Dunlap's  Devisees 

(Hardin,  41)  200 

McCord  V.  The   West  Feliciana   R.    R. 

Co.  (3  La.  Ann.  285)  416 

McCormick  v.  Elston  (16  111.  204)  432 

V.  Seymour  (2  Blatch.  C.  C. 
240;  3  Blatch.  C.  C. 
209)  674,  675 

McCoy  V.  Danley  (20  Penn.  85)  528 

v.  Lemon    (11    Rich.  L.    [S.  C] 

165)  704 

McCrea  v.  Purmort  (16  Wend.  460)  184 

McCreery  v.  Willett  (22  How.   Pr.  91  ;  4 
Bosw.  643  ;  23  How.  Pr.  129)  38,  589 


PAGE 

McCullough  V.  Cox  (6  Barb.  386)         498,  506 
V.  Walton  (11  Ala.   [N.  S.] 

492)  454 

McDaniel  v.  Baca  (2  Cal.  326)  707 

V.  Emanuel  (2  Rich.  L.  455)  97 

i;.  Parks  (19  Ark.  671)  231 

McDonald  v.  Hodge  (5  Haywood,  85)  268 

V.  Montague  (30  Vt.  357)  236 

V.  Neilson  (2  Cow.  140)  488 

V.  North  (47  Barb.  530)       544,  583 

V.  Scaife  (11  Penn.  381)  582 

McDowell  V.  Oyer  (21  Penn.  417)         207,  219 

McDugald  V.  McFadgin   (6  Jones  L.  [N. 

C]  89)  505 

McElroy  v.  Goble  (6  Ohio,  187)  48,  148 

McGavock  v.  Chamberlain  (20  111.  219)       577 
V.  Wood  (1  Sneed,  181)  320 

McGee  v.  Roen  (4  Abbott's  Pr.  8)  350 

McGehee  v.  Shafer  (9  Tex.  20)  707 

McGill  V.  Rowand  (3  Barr,  451 )  692 

McGinnis  v.  Noble  (7  Watts  &  S.  454)        508 
McGlynn,  Ex'r,  v.  McGraw,  Adm'r  (Su- 
preme Court  U.  S.  1868)  717 
McGovern  tJ.  Lewis  (56  Penn.  231)  399 
McGregor  v.  Kilgore  (6  Ohio,  358)  395 
McGuire  v.  Grant  (1  Dutcher,  356)  145 
r.  Pierce  (9  Gratt.  167)  610 
Mcllvaine  v.  Egerton  (2  Robertson,  422)    514 
V.  Wilkins  (12  N.  H.  474)  437,  441 
Mclnroy  v.  Dyer  (47  Penn.  118)  569,  573,641 
Mclntyre  v.  N.  Y.  Central  R.  R.  Co.   (43 

Barb.  532;  47  Barb.  515)  647 

McKee  v.  Brandon  (2  Scammon,339)  181 

V.  Nelson  (4  Cow.  355)  694 

McKenzie  v.  Allen  (3  Strobhart,  546)  638 

V.  Hancock  (Ryan  &  M.  436)       322 

McKeon  v.  Lee  (4  Rob.  N.  Y.  Supr.  Ct. 

449)  717 

McKinney  v.  Peck  (28  111.  174)  209 

V.  Springer  (3  Ind.  59)  236, 242,  503 
McKnight  v.  Dunlop  (4  Barb.  36  ;  5  N. 

Y.  [1  Seld.]  537)         237,  291, 

292,  432 

«;.  Ratclifre(44Penn.  156)        71,76 

McLane  v.  Elmer  (4  Ind.  239)  9 

V.  Miller  (12  Ala.  643)  503,  508 

McLaren  v.  Long  (25  Ga.  708)  334 

McLauchlin  v.  The  Charlotte  &  So-  Car. 

R.  R.  Co.  ( 5  Rich.  L.  583 )  664 

McLaughlin  v.  Washington  Ins.   Co.  (23 

Wend.  525)  433 

McMahon  v.  Cincinnati,  &c.,   R.  R.   Co. 

(5  Ind.  413)  664 

V.  N.  Y.  &  Erie  R.  R.  Co.  (20 

N.  Y.  463)  436 

McMichael  v.  Mason  (13  Penn.  214)  606,  641 
McMillan  v.  Vanderlip,  12  Johns.  165)  237 
McNair  v.  Compton  (35  Penn.  23)      177,  197, 

206,  223 
McNamara  v.  King  (2  Oilman,  432)  526 

w.  Vincent  (2  Irish  Eq.  481)     211 
McNaughter  v.  Cassally  (4  McLean,  530) 

315 
McNeill  V.  Reid  (9  Bing.  68)  99 

McPherson  v.  Daniels  (10  Barn.  &  C.  263)  90 
McRae  v.  Brown  (12  La.  Ann.  181)  453 

McTavish  v-  Carroll  (13  Md.429)  677 

McWilliams  v.  Bragg  (3  Wise.  424)  528 


TABLE    OF    CASES. 


xlix 


Mcacham  v.  Fitchburg  II.  R.  Co.  (4  Cush 

291) 
Mead  v.  Wheeler  (1.3  N.  H.  351) 
Meade  v.  Rutlcdge  (11  Tex.  44)  80, 

Means  v.  Milliken  (33  Penn.  517)         205, 
Mears  v.  Nichols  (41  111.  207) 
Meason  v.  Philips  (Addison,  346) 
Medbury  v.  N.  Y.  &  Erie  K.  K.  Co.  (26 
Barb.  564) 
V.  Watson  (6  Mete.  246)         35, 
Medeiros  v.  Hill  (1  M.  &  Scott,  311  ;  5  C. 

&P.  182;  8  Bing.  231) 
Meech  v.  Smith  (7  Wend.  315) 
Meeker  v.  Klcnnn  (11  La.  Ann.  104) 
Mellish  V.  Simeon  (2  H.  Bl.  378,  379) 
Mellor  V.  Spateman  ( 1  Saund.  346  a) 
Memphis  &  Little  Hock  R.   R.   Co.   v. 

Walker  (2  Head  [Tenn.],  467) 
Menkens  v.  Menkens  (23  Mo.  252) 
Mentges  v.  N.  Y.  &  Harlem  R.  R.  Co.  (1 

Hilt.  425) 
Mentz  V.  Second  Ave.  R.  R.  Co.   (2  Rob- 
ertson, 356) 
Mercer  v.  Irving  (1  Ellis,  B.  &  E.  563) 

V.  Jones  (3  Camp.  476)    546,  547, 

V.  Whall  (9  Jurist,  576  ;  S.  C.  5  Q. 
B.  447) 
Merest  v.  Harvey  (5  Taunt.  442) 
Merrick  v.  Brainard  (38  Barb.  574) 
Merrill  v.  Gore  (29  Me.  346) 

V.  Ithaca  &  Owego  R.  R.  Co.  (16 
Wend.  586)  242, 

I'.  Men-ill  (15  Mass.  488) 
Merrills  V.  Tariff  Manuf,  Co.  (10  Conn. 

384) 
Merritt  v.  Benton  (10  Wend.  117) 

V.  Brinkerhoff  (17  Johns.  306) 

V.  Nevin  (20  U.  C.  Q.  B.  540) 
Merrow  v.  Hunton  (25  Vt.  9) 
Mervine  v.  Sailor  (52  Penn.  9) 
Meshke  v.  Van  Doren  (16  Wise.  319) 

Metcalf  i;.  Stryker  (31  Barb.  62) 
Metropolitan  Bank  v.  Van  Dyek,   Sup't 

(27  N.  Y.  400) 
Meyer  v.  Dresser  (33  L.  J.  (N.  S.)  C.  P. 
289) 
V.  Roosevelt  (27  N.  Y.  400) 
Michael  v.  Mills  (17  Ohio,  601) 
Michigan   Southern  &  N.  I.  R.  R.  Co.  v. 

Caster  (13  Ind.  164)  395, 

Mickle's  Adm'r  v.  Miles  (1  Grant's  Cas. 

320) 
Mickles  v.  Hart  (1  Denio,  548) 
Micklethwaite,  Li  re  (33  Eng.  L.  &  E.  410) 
Middlekauff  v.  Smith  (1  Md.  343)         73, 
Middleton  v.  Bryan  (3  Maule  &  S.  155) 
Milbank  v.  Dennistoun  ( 1  Bosw.  246 ;  21 

N.  Y.  386) 
Milburn  v.  Beach  (14  Mo.  104) 

V.  Belloni  (34  Barb.  607) 
Mildmay's  Case  (1  Coke,  176) 
Miles  V.  B'd  of  Commissioners  (8  Blatch- 
ford,  Ind.  158) 
V.  Moodie  (3  Serg.  &  R.  211) 
Milford  V.  Mayor  (1  Doug.  54) 
Millard  v.  Brown  (35  N.  Y.  297) 


PAGE 

663 
499 
218 
418 
509 
301 

395 
658 

404 
432 

280 
271 

44 

269 
563 

534 

534 
467 
564, 
568 

685 
520 
397 
246 

245 

476 

523 
276 
149 
84 
242 
261 
555, 
643 
595 

261 

512 
261 
183 

396 

622 
49 
684 
212 
580 

381 
528 
328 
183 

440 
238 
274 
534 


Miller  v.  Eagle  Life  &  Health  Ins.  Co.  (2 

E.  D.  Smith,  268) 
V.   Fulton    (2    Hammond    [Ohio], 

433) 
V.  Garling  (12  How.  Pr.  203) 
V.  Garrett  (35  Ala.  96) 
V.  Goddard  (34  Me.  102) 
V.  Laubach  (47  Penn.  154) 
V.  Mariner's  Church  (7  Greenl.  51) 


288 

143 
88 
453 
390 
147 
63, 
102 
128 
140 
627 
506 
247 
372 
263 


V.  Melchor  (13  Ired.  L.  439) 
V.  Miller  (12  Mass.  454) 
V.  Parish  (8  Pick.  384) 
V.  Smith  (1  Mason,  437) 
Milles  V.  Milles  (Cro.  Car.  241) 
Milligan  v.  Wedge  (12  Ad.  &  E.  737) 
Milliken  v.  Sloat  (1  Nev.  573,  585) 
Milliman  v.  Oswego  &  Syracuse  R.  R.  Co. 

(10  Barb.  87)  693 

Millison  u.  Hoch  (17  Ind.  227)  529 

Mills  V.  Bell  (3  Call,  323)  181 

V.  Catlin  (22  Vt.  98)  189 

V.  Fox  (4  E.  D.  Smith,  220)  465 

U.Hall  (9  Wend.  315)  29 

Milwaukee  &  Mississippi   R.  R.    Co.   v. 

Eble  (4  Chandler,  72)  664,  695 

Milwaukee  &  Miss.  R.  R.  Co.  v.  Finney 

(10  Wise.  388)  532 

Miner  v.  Tagert  (3  Binn.  204)  379 

Minister,  &c.,  of  the  Reformed  D.  Church 
in  Saugerties,  Case  of  the,  (16  Barb. 
237)  143 

Minor  i;.  Steamboat  Picayune,  No.  2   (13 

La.  Ann.  564)  71,  536 

Misner  v.  Granger  (4  Gilm.  69)  328 

Miss.  Central  R.  R.  Co.  v.  Kennedy  (41 

Miss.  671)  394 

Mitchell  V.  Billingsley  (17  Ala.  391)  144,  146, 

526 
V.  Hawley  (4  Denio,  414)  684 

V.  Hazen  (4  Conn.  495)  179 

V.  Milbank  (6  T.  R.  199)  688 

V.  Mitchell  (1   Md.  58;  10  Md. 

234)  129 

Mixed  Moneys,  Case  of  ( Sir  John  Davis 

R.  18  ;  S.  C.  cited  2  Bligh,  98)  261 

M'Keon  v.  Citizens'  R.  R.  Co.  (42  Mo. 

80)  718 

Moak  V.  Johnson  (1  Hill,  99)  174,  175 

Moffatt  V.  Pratt  (12  How.  Pr.  48)  572 

Moggridge  v.  Jones   (3   Camp.   38 ;    14 

East,  486)  504 

Monagle  v.  The  County   Commissioners 

of  Bristol  (8  Cush.  360)  663 

Monckton  v.  Pashley  (2  Ld.  Raj-m.  974; 

S.  C.  2  Salk.  638)  144 

Mondel  v.  Steele  (8  Mees.  &  W.  858)  509 

Monell  V.  Burns  (4  Denio,  121 )  237 

Monongahela   Bridge    Co.    v.   lurk    (46 

Penn. 112)  121 

Montgomery  Co.    Bank  v.  Albany   City 

Bank  (8  Barb.  396  ;  7  N.  Y.  459)  377 

Montgomery  &  West  Point  R.  R.  Co.  v. 

Varner  (19  Ala.  185)  664 

Montrion  v.  Jefferys  (2  Car.  &  P.  113)        511 

Moody  V.  Baker  (5  Cow.  351)  627 

V.  McDonald  (4  Cal,  297)  515 

V.  Whitney  (38  Me.  174)  559,  573 


TIABLE   OF    CASES. 


PAGE 

Moon  V.  Raphael  (2  Bing.  N.  C.  310)         544, 

569,  640 

Moore's  Adm'r  v.  Minerva  (17  Tex.  20)        96 

Moore  t>.  Adams  (2  Chitty,  198)  .     89 

V.  Bowman  (47  N.'H.  494)  718 

V.  ricniiuf,-  (;}4  Ala.  491 )  270 

V.   Hudson    River  R.   R.   Co.   (12 

Barb.  156)  295 

v.  Love  (3  Jones  L.  215)  111 

V.   Mayor   of   Shreveport    (3    La. 

Ann.  645)  535 

V.  Winter  (27  Mo.  380)  118 

V.  Withenburg  (13  La.  Ann.  22)      453, 

454 

Moran  v.  Dawes  (4  Cow.  412)  633 

Morgan  v.  Gregg  (46  Barb.  183)  550 

V.  Powell  (3  Q.  B.  278)  156,  624 

V.  Reintzel  (7  Cranch,  273)  276 

V.  Richardson  (cited  7  East,  482; 

1  Camp.  40)  492,  493 

V.  Ryerson  (20  111.  343)  324 

V.  Varick  (8  Wend.  587)  137 

Morley  v.  Attenborough  (3  Exch.  500)       330 

Morrell  v.  Irving  Fire  Ins.  Co.  33  N.  Y. 

429)  286 

Morris  v.  Barkley  (1  Littell,  64)  627 

V.  Brush  (14  Johns.  328)  671 

V.  Phelps  (2  Hilt.  38)  534 

V.  Phelps  (5  Johns.  49)  182 

y.  Price  (2  Blackf.  457)  453 

t;.  Robinson  (3  Barn.  &  C.  196)       575 
V.  Summerl   (2    Wash.   C.  C.  R. 

203)  376 

Morrison  v.  Cummings  (26  Verm.  486)  236, 

242 

V.  Lovejoy  (6  Minn.  319)  488 

V.  Robinson  (31  Penn.  456)  131,  137 

Morrison's  Ex'rs  v.  Hart  (2  Bibb,  4)  525 

Morse  v.  Crawford  (17  Vt.  499)  518 

V.  Rathburn  (42  Mo.  594)  718 

V.  Shattuck  (4  N.  H.  229)  185 

V.  The  Auburn  &  Syr.  R.  R.  Co. 

(10  Barb.  621)  648 

Mortland  v.  Smith  (32  Mo.  225)  602 

Moseley  v.  Anderson  (40  Miss.  49)  543 

Moses  V.  Bierling  (31  N.  Y.  462)  391 

V.  Macferlan  (2  Burr.  1005)  293 

V.  Stevens  (2  Pick.  332)  238 

Moshier  v.  U.  &  S.  R.   R.   Co.   (8  Barb. 

427)  535 

Moss  V.  Johnson  (22  111.  633)  534 

V.  Smith  (9  C.  B.  94)  283 

Mott  V.  Hicks  (1  Cow.  513)  362 

V.  Mott  (11  Barb.  127)  467 

Moulton  V.  Chapin  (28  Me.  505)  52 

V.  Trask  (9  Mete.  577)  240 

Mountford  v.  Gibson  (4  East,  441,  447)       570 

Mount  Washington  Road  Co.,  Petition  of 

(35  N.  H.  134)  662 

Mowry  v.  Bishop  (5  Paige,  98)  439 

V.  Wood  (12  Wise.  413)  529,  565 

Mueller  v.  St.  Louis  &  Iron  M.  R.  R.  Co. 

(31  Mo.  262)  623 

Mullen  V.  Enslev  (8  Humphreys,  428)         571 

V.  Gilkinson  (19  Vt.  503)  238 

Muller  V.  Eno  (14  N.  Y.  [4  Kern.]  597)      322 

Mullet  V.  Mason  (1  L.  R.  [C.  P.]  559)   58,  98, 

329,  333 


Mulvehall  v.  Millward  (11  N.  Y.  [1  Kern.] 

343)  633 

Mumford  v.  Hawkins  (5  Denio,  355)  438 

Mundy  v.  Culver  (18  Barb.  33G)  481 

Munroe  v.  Gates  (48  Me.  463)  45 

n.  Pritchett  (16  Ala.  785)  656 

Munson  v.  Munson  (24  Conn.  115)  569 

Murphy  v.  Grain  (12  Tex.  297)  528 

V.  Diamond  (3  La.  Ann.  441)        535 

V.  N.  Y.  &  N.  H.  R.  R.  Co.  (29 

Conn.  496)  646 

V.  Stout  (1  Ind.  372)  629 

V.  Troutman  (5  Jones  L.  [N.  C] 

379)  596 

Murray  v.  Burling  (10  Johns.  172)  568 

V.  Garretson  (4  Serg.  &  R.  130)     129 
V.   Gouvemeur    (2    Johns.   Cas. 

438)  136 

V.  Hudson  River  R.  R.  Co.  (47 

Barb.  196)  707,  708 

Murrell  v.  Whiting  (32  Ala.  54)  405 

Musgrave  v.  Beckendorff  (53  Penn.  310; 

6  Am.  Law  Reg.  fN.  S.]  433)  551 

Mussen  V.  Price  (4  East,  147)  316 

Mutual  Safety  Ins.  Co.  v.  The  George  (8 

Law  ReporW,  361)  283 

Myers  D.  Burns  (33  Barb.  401)  210 

V.  Crockett  (14  Tex.  257)  391 

V.  Malcolm  (6  Hill,  292)  29,  146 

V.  The  York  &  Cumberland  R.  R. 

Co.  (2  Curtis'  C.  C.  R.  28)        244 
Myrick  v.  Slason  (19  Vt.  121)  240 

N. 

Nagle  t;.  MuUison  (34  Penn.  48)  529 

Napier  v.  Schneider  (12  East,  420)  271 

Narragansett,  The  (Olcott,  388)     71,  536,  537 
Nash  V.  Hermosilla  (9  Cal.  584)  465 

Nashville   &    Chattanooga   R.  R.  Co.  v. 

Cowardin  (11  Humph.  348)  664 

National  Assurance  &  Investment  Asso- 
ciation V.  Best  (2  Hurl.  &  N.  605)  344 
National  Lancers  v.  Lovering  (10  Fost. 

511)  432 

Naugatuck  R.  R.  Co.  v.  Waterbury  But- 
ton Co.  (24  Conn.  468)  396 
Nautilus,  The  (Ware,  529)  537 
Navone  v.  Hadden  (9  C.  B.  30)                    279 
Naylor  v.  Schenck  (3  E.  D.  Smith,  135)     492 
Neale  v.  Wyllie  (3  Barn.  &  C.  533)     370,  371 
Nebraska  City  v.  Campbell  (2  Black.  590)  648 
Needham  v.  Eraser  (1  C.  B.  815)                  669 
Needles  v.  Howard  (1  E.  D.  Smith,  54)      395 
Neff  t;.  Clute  (12  Barb.  466)                         267 
Negus,  ex-paiie  (7  Wend.  499)               344,  350 
Nellis  V.  Lathrop  (22  Wend.  121)                 209 
Nels  V.  The  State  (2  Tex.  282)  706 
Nelson  v.  Belmont  (5  Duer  [N.  Y.],  310)    280 
V.  Butterfield  (21  Me.  220)                668 
V.  Cook  (19  111.  440)  621 
V.  Feldcr  (7  Rich.  Eq.  395)       433,  444 
V.  Gray  (2  Greene  [Iowa],  397)        610 
V.  MattheAvs  (2  Hen.  &  M.  164)       181 
V.  Morgan  (2  Martin  L.  R.  257) 

387   523 
V.  The  Suffolk  Ins.  Co.  (8  Cush.' 

[Mass.]  477)  279 


TABLE    OF    CASES. 


li 


Nclthoii)e  V.  Dorrington  (2  Lev.  113) 
Nettles  V.  The  South  Carolina  R.  R.  Co. 

(7  Rich.  L.  190) 
Neville  v.  Frost  (2  E.  D.  Smith,  62) 
New    Alhaiiy   &    Salem    R.   R.   Co.   v. 

O'Daily  (12  Ind.  551) 
Ncwbrough  v.  Walker  (8  Grat.  16) 
Newcastle,  iS;c.,  R.  R.  Co.  v.  Brumback 

(5  Ind.  .543) 
Newell  V.  Griswold  (6  Johns.  45) 
V.  Sanford  (13  Iowa,  463) 
V.  The  People  (7  N.  Y.  [3  Seld.] 

9) 
New  Haven   S.  &  T.  Co.  v.  Vanderbilt 

(16  Conn.  420) 
New  Jersey  Flax  Co.  v.  Mills  (2  Dutcher, 

60) 
New  Jersey,  The  (Olcott,  444) 
Newman  v.  Goza  (2  La.  Ann.  642) 
New  Orleans  Draining  Co.  v.  De  Lezardi 

(2  La.  Ann.  281)  563, 

New  Orleans,  Jackson  &  Gt.  N.  R.  R.  Co. 

i;.  Allbritton  (38  Miss.  242) 
New  Orleans,  Jackson  &  Gt.  N.  R.  R.  Co. 

V.  Bailey  (40  Miss.  395) 
New  Orleans,  Jackson  &  Gt.  N.  R.  R.  Co. 

V.  Hurst  (36  Miss.  660)  529,  532, 

New  Orleans,  Jackson  &  Gt.  N.  R.  R.  Co. 

V.  Moore  (40  Miss.  39)  394, 

Newsom  v.   Harris    (Dudley's    [Ga.]    R. 

180) 
New  York  Central  Ins.  Co.  v.  National 

Protection  Ins.  Co.  (20  Barb.  468) 
New  York,  City  of,  v.  Ransom  (23  How. 

[U.S.]  487) 
New  York  Dry  Dock  Co.  v.  Mcintosh  (5 

Hill,  290) 
New  York  &  Harlem  R.  R.  Co.  v.  Story 

(6  Barb.  419)  76,  250, 

New  York  State  M.  Ins.  Co.  v.  Protection 

Ins.  Co.  (1  Story,  458)  365, 

New  York  &  Washington  Printing  Tel. 

Co.  V.  Drysburg  (35  Penn.  298)        409, 
Nibbe  v.  Brauhn  (24  111.  268) 
Nichols  V.  Bridgeport  (23  Conn.  189) 

V.  Dusenbury  (2  N.  Y.  [2  Comst.] 

283) 
v.  Freeman  (11  Ired.  99) 
Nicholson  v.    The   New    Yoi'k    &    New 

Haven  R.  R.  Co.  (22  Conn.  74)      664, 

Nickerson  v.  Harriraan  (38  Me.  277) 
Nickley  v.  Thomas  (22  Barb.  652) 
Nicoll  V.  Conard  (4  Peters,  291) 
Nightingale  v.  Scannell  (18  Cal.  315) 

Nimick  v.  Holmes  (25  Penn.  366) 
Nininger  v.  Banning  (7  Minn.  274) 
Nisbit  V.  Lawson  (1  Kelley  [Geor.],  275) 

Niver  v.  Rossman  (18  Barb.  50) 
Nixon  V.  Denhara  (iJebb  &  S.  416) 
N.  &  K.  Turnpike  Co.  v.  Harris  (8  Hum- 
phreys, 558) 
Noble  V.  Epperly  (6  Ind.  468) 
V.  Walker  (32  Ala.  456) 
Nobles  V.  Bates  (7  Cow.  307) 
Noland  v.  Leach  (5  Eng.  504) 


PAGE 

570 

395 
236 

663 

208 

664 
432 
104 

664 

538 

681 
536 
271 

567 

531 

532 

533 

395 

200 

367 

674 

52 

416 

368 

413 
234 

664 

502 
203 

707, 
711 
515 
695 
616 

588, 
602 
280 
563 

589 
472 
210 

508 
581 
267 
472 
578 


Nolensville  Turnpike  Co.  v.   Quimby  (8 

Humph.  476)  667 

Noonan  v.  Il.sley  (17  Wise.  314)  269 

Norcross  v.  Benton  (38  Penn.  217)  490 

Norman  v.  Wells  (17  Wend.  137, 161)         694 
Norrice's  Case  (Hard.  178)  485 

Norris  v.  Morrill  (40  N.  H.  395)  693 

V.  Pilmore  (1  Yeates,  408)  453 

North  V.  Musgrave  (1  Rol.  Abr.  574)  671 

V.  Wingate  (Cro.  Car.  559)  671 

Northampton  (^Earl)  Case  (12  Coke,  134)     90 
Northeastern   11.   R.    Co.   v.    Sineath    (8 

Rich. L.  185)  664 

Northern  R.  R.   Co.  v.  The  Concord  & 

Claremont  R.  R.  Co.  (7  Fost.  183)  663 

North  Penn.  R.  R.  Co.  v.  Davis  (26  Penn. 

238)  664 

V.  Heileman    (49 

Penn.  60)       534 
V.  Robinson    (44 

Penn.  175)     646 
North  River  Meadow  Co.  v.  Christ  Church 

(2  Zabr.  425)  442 

Norton  v.  Babcock  (2  Mete.  510,  516)         178, 

193 
V.  Rooker  (Wise.  [1843]  33)  508 

r.  Wales    (1    Robertson    [N.  Y.], 

561)  291 

Nosotti  «.  Page  (10  C.  B.   643;  S.   C.  2 

Eng.  L.  &  E.  326)  44 

Nossaman  v.  Rickert  (18  Ind.  350)  530 

Nottingham  V.  Osgood  (MSS.)  160 

Nourse  v.  Snow  (6  Greenl.  208)  395 

Nova  Scotia  Tel.  Co.  v.  Am.  Tel.  Co.  (4 

Am,  Law  R.  [N.  S.]  365)  266 

Nowell  V.  Roake  (7  Barn.  &  C.  404)  135 

Noxon  V.  Hill  (2  Allen,  215)  602 

Noyes  v.  Anderson  (1  Duer,  342)  175 

V.  Ward  (19  Conn.  250)  105 

Nurse i).  Barnes  (T.  Raym.  77)  94,  222 

Nutting  V.  Herbert  (35  N.  H.  120  ;  37  N. 

H.  346)  181,  187 

Nyce's  Ex'rs  v.  Oberts  (17  Ohio,  71)  162 

Nye  V.  Merriam  (35  Vt.)  438  529 

V.  Smith  (11  Mass.  188)  601 


O. 


Oakland  R'way  Co.  v.  Fielding  (48  Penn. 

320)  636,  646 

Oakley  v.  Boorman  (21  Wend.  588)     233,370 
O'Brien  v.  Norwich  &  W.  R.  R.  Co.  (17 

Conn. 372)  30 

Ocean  Ins.  Co.  v.  Fields  (2  Story,  59)  539 

O'Connell  v.  Reginam  (9  Jur.  25)  686 

O'Conner  V.  Forster  (10  Watts,  418)  398,  399 
O'Donoghue  v.  Corby  (22  Mo.  393)  563 

O'Ferrall  v.  Simplot  (4  Iowa,  381)  140 

Offutt  V.  Edwards  (9  Robin.  [La.]  90)         453, 

454 
Ogden  V.  Marshall  (4  Seld.  340)  399, 

V.  N.  Y.  Mutual  Ins.  Co.  (8  Bosw. 
248) 
Ogle  V.  Atkinson  (5  Taunt.  759) 

V.  Earl  Vane   (2  L.  R.  [Q.  B.]  275  ; 
36  L.  J.  R.  [Q.  B.]  175) 
O'Hanlan  v.  Great  Western  R.  R.  Co.  (34 


407 


253 

570 


416 


lii 


TABLE   OF    CASES. 


L.  J.  R.  [N.  S.]  Q.  B.  154;  11  Jur.  [N. 

S.]  797)  396 

O'Hara  v.  Penn.  R.  R.  Co.  (25  Penn.  445)  664 
Ohio  Life  lus.  &  T.   Co.  v.  Reeder  (18 

Ohio,  47)  351 

Ohio  &  Miss.  R.  R.  Co.  v.  Dunbar  (20  111. 

623)  63 

V.  Tindall  (13lnd. 
366)  647 

Ohio  &  Penn.  R.  R.   Co.  v.  Bradford   (19 

Penn.  363)  664 

Ohio  V.  Jones  (21  Wend.  594)  606 

Ohio,  State  of,  v.  Movers  (14  Ohio,  538)     610 
Okell  V.  Smith  (1  Stark.  107)  511 

Old  Colony  &  Pall  River  R.  R.   Co.  v. 

County  of  Plymouth  (14  Gray,  155)        668 
Old  Colony  R.  R.  Cor.  v.  Evans  (6  Gray, 

25)  203,  205 

Oldfield  V.  N.  Y.  &  H.  R.  R.  Co.  (3  E.  D. 

Smith,  103  ;  14  N.  Y.  310)  647,  707 

Oldham  v.  Woods  (3  Monr.  47)  137 

O'Leary  v.  Rowan  (31  Mo.  117)  677 

Oliver  V.  Chapman  (15  Tex.  400)  529 

Ollivant  v.  Bayley  (5  Q.  B.  288)  328 

Olmsteady.  Brush  (27  Conn.  530)  51,  52 

V.  Burke  (25  111.  86)  73,  677 

Olmsted  v.  Beale  (19  Pick.  528)  238 

V.  Brown  (12  Barb.  657)  630 

O'Meara  v.  The  North  American  Mining 

Co.  (5  Nevada,  112)  552,555 

O'Neal  V.  O'Neal  (4  Watts  &  S.  130)  453 

O'Neall  V.  South  Carolina  R.  R.  Co.  (9 

Rich.  L.  465)  395 

Orange   &  Alex'a  R.  R.  Co.  v.  Pulvey  & 

Cowherd  (17  Grat.  366)  555 

Orcixtt  V.  Orms  (3  Paige,  459)  9 

Oriental  Bank  v.   Tremont   Ins.   Co.    (4 

Mete.  1)  433 

Orru.  Bigelow  (20  Barb.  21  ;  14  N.   Y.) 

556)  313 

V.  Churchill  (1  H.  Bl.  232)  457,471 

Orton  V.  Butler  (5  Barn.  &  Aid.  654)  37 

Osborn  v.  Moore  (12  La.  Ann.  714)  32 

V.  U.  S.  Bank  (9  Wheat.  738)  446 

Osbourn  v.  Osbourn  (11  Serg.  &  R.  55)       130 
Osbourne  v.  Hosier  (6  Mod.  167)  442 

Osgood  V.  Nichols  (5  Gray,  420)  392 

w.  Osgood  (39  N.H.  209)  351 

O'Shea  V.  Kirkcr  (4  Bosw.  120)  681 

Ossulston  V.  Yarmouth  (2  Salk.  449  439 

Osterhout  v.  Roberts  (8  Cow.  43)  575 

Otis  V.  Jones  (21  Wend.  394)  641 

Otter  V.  Williams  (21  111.  118)  552 

Otto  V.  Jackson  (35  111.  349)  209 

Ouslv  V.  Hardin  (23  111.  403)  529 

Outcalt  V.  Burling  (1  Dutch.  [N.  J.]  443)     615 
Outton  V.  Barnes  (Litt.  Sel.  Cas.  137)  549 

Overhiser,  Ex'r,  v.  McCollister  (lOlnd.  41) 

188 
Overton  v.  Phelan  (2  Head  [Tenn.],  445)   328, 

508 
Oviatt  V.  Pond  (29  Conn.  479)  615 

Owen  V.  O'Reilly  (20  Mo.  603)  50 

V.  Routh  ( 14  C.  B.  327 )  292,  294,  305,  548 
Owens  V.  Salter  (38  Penn.  211)  490 

Owings  V.  Gibson  (2  A.  K.  Marsh.  515)        143 
V.  Jones  (9  Md.  108)  534 

Oxendale  v.  Wetherell  (9  Barn.  &  C.  386)    239 


Pacific  Ins.  Co.  v.  Conard  (1  Baldw.  138)    169, 

616 
Pack  17.  The  Mayor,  &c.,  of  New  York,  (3 

N.  Y.  [3  Comst.]  489)  645 

Packard  v.  Hill  (7  Cow.  4.34)  689 

V.  Slack(.32  Vt.  9)  333,677 

Padelford  v.  Padelford  (7  Pick.  152)  158 

Page  V.  Ford  ( 1 2  Ind.  46 )  80,  501 

V.  Mitchell  (13  Mich.  63)  649 

V.  Newman  (9  Barn.  &  C.  378 ;  S.  C. 

4  Man.  &  Ry.  305)  276 

V.  Parker  (43  N.  H.  363 ;  40  N.  H. 

47)  333 

Paige  V.  Hazard  (5  Hill,  603)  696 

y.  Ott(5Denio,  406)  239 

Paine  v.  City  of  Boston  (4  Allen,  168)  668 

Pallet  V.  Sargent  (36  N.  H.  496)  629 

Palm  V.  Ohio  &  Miss.  R.  R.  Co.  (18  111. 

217)  77 

Palmer  v.  Andrews  (7  Wend.  142)  423 

v.  Crook  (7  Gray,  418)  638 

V.  Crosby  ( 1  Blackf.  1 39 )  117 

V.  Gallup  (16  Conn.  555)  531,603 

Pardee  v.  Robertson  (6  Hill,  550)  592 

Parish  v.  Wheeler  (22  N.  Y.  494)  556 

Parkv.  Bates  (12  Vt.  381)  181 

V.  Hamond  (4  Campb.  344  ;  6  Taunt. 

495)  375,376 

V.  McDaniels  (37  Vt.  594)  678 

Parker  v.  Adams  ( 1 2  Mete.  41 5)  535 

V.  Biglow  (14  Pick.  436)  433 

V.  City  of  Lowell  (11  Gray,  353)       677 

V.  Griswold  (17  Conn.  288)  48, 142, 146, 

148 

V.  James  (4  Campb.  112)  378,  381 

V.  Norton  (6  T.  R.  695)  546 

V.  Thompson  (3  Pick.  429)  434 

V.  Walker  (12  Rich.  L.  [S.  C]  138)  225 

Parkinson  v.  Lee  (2  East,  314)  327 

Parks  V.  Alexander  (7  Ired.  4L2)  600 

V.  Marshall  (10  Ind.  20)  270 

17.  The  Alta  Cal.  Tel.  Co.  (13  Cal. 

422)  408 

V.  Wilson  (10  Mod.  515)  449 

Parmalee  v.  Wilks  (22  Barb.  539)  62 

Parry  v.  Frame  (2  Bos.  &  P.  451 )  565 

Parsons  v.  Harper  (16  Gratt.  [Va.]  64)         650 

V.  Pettingell  (11  Allen,  507)  143 

17.  Strong  (13  Vt.  235)  607 

Partenheimer  Z7.  Van  Order  (20  Barb.  479)  682 

Pasley  v.  Freeman  (3  T.  R.  51 )  27, 47 

Passinger  17.  Thorburn  (35  Barb.  17  ;  34 

N.  Y.  634)  329 

Pastorious  v.  Fisher  (1  Rawle,  27)  45,  522 

Paterson  v.  Harris  (1  Best  &  S.  336)  281 

Pateshall  v.  Tranter  (3  Adol.  &  E.  103)         319 

Patrick  v.  Marshall  (2  Bibb,  40)  200 

V.  Putnam  (27  Vt.  759)  238 

Patten  v.  Halstead  (1  Coxe,  277)  611 

17.  Libbey  (32  Me.  379)  677 

V.  Northern    Cen.  R.  R.    Co.    (33 

Penn. 426)  662 

Patterson  v.  Boston  (23  Pick.  425)  668 

V.  Westervelt    (17   Wend.   543, 

548)  591 

Patton  V.  England  (15  Ala.  69)  656,  658 


TABLE   OF    CASES. 


liii 


PAGE 

Paul  V.  Frazcr  (3  Mass.  73)  422 

V.  Goodluck  (2  Binfj.  [N.  C]  220)       482 
V.  Hadley  (23  Barb.  521 )  327 

V.  Jones  ( 1  Term  R.  .599)  342 

V.  Slason  (22  Vt.  231 )  28,  50,  54,  594 

Payne  v.  Ellzey  (2  Wash.  143)  482 

u.  Pacific  Mail  'Steamship  Co.   (1 

Cal.33)  707 

V.  Wliale  (7  East,  274)  334 

Peacock  r'.  Monk  (1  Ves.  Sen.  128)  183 

Pearse  v.  Cameron  ( 1  Maule  &  S.  675 )  689 

Pearson  v.  Duane  (4  Wallace,  605)  407 

r.  Ilcs(2Dougl.  561)  669 

V.  Lemaitre  (5  Mann.  &  G.  700)       630 

V.  Williams  (24  Wend.  244  ;    26 

Wend.  630)  470 

Peck  V.  Brown  (2  Robertson  [N.  Y.]  119)     514 

V.  Van  Rensselaer  (8  Blackf.  312)         667 

Pecle  V.  Merchants'  Ins.  Co.  (3  Mason,  27)   281 

Pect  V.  Chicago  &  Northwest  R.  R.  Co.  (20 

Wise.  594)  402 

Peirce  v.  Rowe  (1  N.  H.  179)  440 

Pelberg  v.  Gorham  (23  Cal.  349)  588 

Pell  V.  Sherman  (32  Eng.  L.  &  E.  496)  425 

Peltier  v.  Sewall  (12  Wend.  386)  240 

Pendergast  v.  McCaslin  (2  Ind.  87)       116, 137 
Pendleton  v.  Davis  (1  Jones  [N.  C]  98)      533, 

689 
Penley  v.  Watts  (7  Mees.  &  W.  601 )      326, 371 
Penn.  R.  R.  Co.  v.  Bantom  (54  Penn.  495)  647 
V.  Henderson  (51   Penn. 

315)  646 

V.  Keiffer  (22  Penn.  356)    664 

V.  Kelly  (31  Penn.  372)      646, 

651 

V.  McClosky's  Adm'r  (23 

Penn.  526)  647 

-    V.   McTighe    (46    Penn. 

316)  534 

V.  Ogier   (35   Penn.    60) 

534,  647 
V.  Vandever  (36  Penn. 

298)  646.  647 

V.  Zebe   (33   Penn.  318) 

646,  651 

V.  Zng  (47  Penn.  480)        574 

Pennant's  Case  (3  Coke,  65)  489 

Pennell  v.  Woodburn  ( 7  Car.  &  P.  1 1 7 )       327 

Penrice  v.  Penrice  (Barnes'  Notes,  3d  Ed. 

234)  •  139 

People,  The,  v.  Alberty)  11  Wend.  162)      158 
V.  Canal    Commissioners  (5 

Denio,  401 )  438 

V.  Compton  (1  Duer,  512)  515 
V.  Corbett  (8  Wend.  520)  349 
V.  Corporation  of  Albany  (11 

Wend,  539)  153 

V.  County  of   New  York  (5 

Cow.  331 )  445 

V.  Gasherie  (9  Johns.  71 )  433 

i;.  Hallett(4Cow.  67)  453 

V.  Hayden  (6  Hill,  359)  667 

V.  Judges  of  C.  P.  (2  Denio, 

197)  683 

V.  Kerr  (27  N.  Y.  188)  663 

V.  La  Grange  (2  Mich.  187)  664 
V.  Lott  (21  Barb.  130)  592 

V.  Love  (19  Cal.  676)  481 

d 


People,  The,  v.  Michigan  Southern  R.  R. 

Co.  (3  Mich.  496)  664 

V.  Russell  (4  Wend.  570)         686 
V.  Schoonmaker  (13   N.    Y. 

[3  Kern.]  238)  664 

V.  Supervisors   of  St.   Law- 
rence (5  Cow.  292)  668 
V.  Township  Board  of   Scio 

(3  Mich.  121)  664 

Peoria  Bridge  Association  v.  Loomis  (20 

111.  235)  529,  648 

Perkins  v.  Hackleman  (26  Miss.  41)  613 

V.  Hart  (11  Wheat.  237)  238 

V.  Lyman  (11  Mass.  76)  476,  482 

V.  Pitman  (24  N.  H.  261)  588 

V.  Portland  S.  &  P.  R.  R.  Co, 

(47  Me.  573)  395 

V.  Thompson  (3  N.  H.  144)  611 

V.  Towle  (43  N.  H.  220)  516,  529 

V.  Wash.  Ins.  Co.  (4  Cow.  645)      376 

Perley  v.  Balch  (23  Pick.  284)  507 

Perrine  v.  Farr  (2  Zabr.  356)  664 

V.  Serrell  (1  Vroom  [N.  J.],  454)    324 

Perry  v.  Goodwin  (6  Mass.  498)  140 

V.  Robinson  (2  Tex.  490)  707 

r.  Smith  (22  Vt.  301)  269 

Persons  v.  Parker  (3  Barb.  249)  535,  592 

Peter  v.  Hargrave  (5  Gratt.  12)  652 

Peters  v.  McKeon  (4  Denio,  546)  198 

V.  Warren  Ins.  Co.  (14  Peters,  99)  279 

V.  Whitney  (23  Barb.  24)  235 

Peterson  v.  Ayre  (13  C.  B.  353 ;  24  Eng. 

L.  &E.  382)  291 

V.  Burn  (3  La.  Ann.  655)  334 

Petre  v.  Duncombe  (15  Jur.  86 ;  2  Lown. 

M.  &  P.  Pr.  Cas.  107)  431 

Pettee  v.   Tenn.   Manuf.  Co.  (1    Sneed, 

381)  492 

Pettit  V.  Addington  (Peake's  Cas.  62)        659 
V.  Mercer  (8  B.  Monr.  51)  453 

Peverly  v.  Sayles  (10  N.  H.  356)  611 

Peyton  v.  Robertson  (9  Wheat.  527)  683 

Pfeil  V.  Kemper  (3  Wis.  315)  697 

Phelin  v.  Kenderdine  (20  Penn.  354)  528 

Phelps  V.  Coggeshall  (13  La.  Ann.  440)      453 
V.  McGee  (18  111.  155)  291,  310 

V.  Owens  (11  Cal.  22)  587 

V.  Williamson  (5  Sandf.  578)  394 

Phenix  v.  Clark  (2  Mich.  327)  578,  692 

Phila.  Wilm.  &  Bait.  R.  R.  Co.  v.  How- 
ard (13  How.  [U.  S.]  307)   .  76,  403 
Phila.  Wilm.  &  Bait.  R.  R.  Co.  v.  Quig- 

ley  (21  How.  [U.  S.J  202)  111,  529 

Philbrook  v.  Burgess  (52  Me.  271)  451 

Phillips  V.  Earle  (8  Pick.  182)  400 

V.  Hoyle  (4  Gray,  568)  632,  677 

V.  Lawrence  (6  Watts  &  S.  150)    508, 

523 

V.  Reichert  (17  Ind.  120)         162,  183 

V.  Williams  (5  Gratt.  259)  438 

Phillpotts  V.  Evans  (5  Mees.  &  W.  475)      317 

Phipps  V.  Addison  (7  Blackf.  375)  690 

V.  Tarpley  (31  Miss.  4.33)  180 

Pickett  V.  Crook  (20  Wis.  358)  532 

Pierce  v.  Benjamin  (14  Pick.  356)       549,  569, 

573 
V.  Dart  (7  Cow.  609)  29 

V.  Fuller  (8  Mass.  223)  467,  476 


liv 


TABLE   OF   CASES. 


PAGE 

Piercer.  Juiifr  (10  AVis.  30)  481 

V.  Scheuck  (3  Hill,  28)  561 

w.  Spader  (13  Ind.  458)  270 

ij.  Woodward  (6  Pick.  206)  112 

Pierson  v.  Eagle  Screw  Co.  (3  Story,  402)    34, 

109 
Piggot  V.  Eastern   Counties  Railway  (3 

C.  B.  229)  697 

Pigou  V.  French  (1  Wash.  C.  C.  278)  362 

Pilford's  Case  (10  Coke,  115)  10,  111,  127,  1.39 
Pilkington  v.  Commissioner  tor  Claims  on 

France  (2  Knapp,  18)  261 

Pilmore  v.  Hood  (5  Bing.  [N.  C]  97)  99 

Pilot  Boat  Blossom,  The  (Olcott,  188)       536, 

537 
Pinchin   v.  London   &   Blackwall  RVay 

Co.  (31  Eng.  L.  &  E.  249)  665 

Pincombe  v.  Rudge  (Hobart,  3  g)  166 

Pindar  v.  Wadsworth  (2  East,  154)       46,  159 
Pingree  v.  CofHn  (12  Gray,  288)  202 

Pinkerton  v.  Manchester  &  Lawrence  R. 

R.  Co.  (42  N.  H.  424)  420,  552 

Pinkston  v.  Huie  (9  Ala.  252)  202 

Pinuey  v.  Barnes  (17  Conn.  420)  248 

V.  Gleason  (5  Wend.  393)  268 

Piper  V.  Menifee  (12  B.  Monr.  465)  67 

Pitcher  v.  Livingston  (4  Johns.  1)        170,  225 
Pitkin  V.  Leavitt  (13  Vt.  379)  105,  189 

Pitt  V.  Donovan  (1  Maid.  &  S.  639)  631 

Pitts  V.  Hall  (2  Blatch.  229)  674 

Pittsburgh,  Fort  Wayne  &  Chicago  R.  R. 

Co.  V.  Karns  (13  Ind.  87)  534 

Pittsburgh  &  S.  R.  R.  Co.  v.  HaU  (25 

Penn.  336)  664 

Pittsburgh  v.  Scott  (1  Barr,  309)  30 

Planck  V.  Anderson  (5  T.  R.  37)  593 

Plant  V.  The  Long  Island  R.  R.  Co.  (10 

Barb.  26)  664 

Plate  V.  N.  Y.  Central  R.  R.  Co.  (37  N. 

Y.  472)  118 

Piatt  V.  Brown  (30  Conn.  336)  106,  529 

r.  Root  (15  Johns.  213)  149 

Pleasants  v.  Heard  (15  Ark.  403)  707 

V.  N.  B.  &  M.  R.   R.   Co.  (34 

Cal.  586)  407,  408 

Pluckwell  V.  Wilson  (5  Car.  &  P.  375)        535 

Plumleigh  v.  Dawson  (1  Gilman,  544)  48 

Plummer  v.  Harbut  (5  Iowa,  308)        588,  605 

V.  McKean  (2    Stewart  [Ala.], 

423)  477 

V.  Webb  (1  Ware,  78)  539 

Plympton  v.  Inhabitants  of  Woburn  (11 

Gray,  415)  668 

Poett  V.  Stearns  (31  Cal.  78)  263 

Police  Jury   of    West  Baton   Rouge    v. 

Bergeron  (11  La.  Ann.  390)  453 

Polk  V.  Fancher  (1  Head  [Tenn.],  336)       529 
Polk's  Adm'r  v.  Allen  (19  Mo.  467)  545 

Pollard  V.  Herries  (3  Bos.  &  P.  335)  271 

V.  Porter  (3  Gray,  312)  54 

Polly  V.  McCall  (1  Ala.  Sel.  Cas.  246)         114 
V.  The  Saratoga  &  Washington  R. 

R.  Co.  (9  Barb.  449)  664 

Pomeroy  v.  Smith  (17  Pick.  85)  557 

Pomery   v.  Partington,  Ex'r    (3    T.   R. 

665)  167 

Pond  V.  Merrifield  (12  Cush.  181)  53 

V.  Wyman  (15  Mo.  175)  221 


Ponsonbv  v.  Adams  (2  Bro.  P.  C.  431)       460 

Pontifex'y.  Bignold.  (3  Scott  [N.  R.],  390)  47 

Pool  V.  Dcvers  (30  Ala.  672)  629 

Poole  V.  Mitcliell  (1  Hill  [S.  C],  404)         143 

V.  Whitcomb  (12  C.  B.  [N.  S.]  770)    54 

Pope  V.  Barrett  (1  Mason,  117)  438 

Port  V.  Jackson  (17  Jdlins.  239,  479)  343 

Porteous  v.  Hazel  (1  Harper  [S.  C],  332)  710 

Porter  v.  Allen  (8  Ind.  1)  536 

V.  Barrow  (3  La.  Ann.  140)  227 

V.  Bradley  (7  R.  I.  538)  190,  194 

V.  North  Mo.  R.  R.   Co.  (33  Mo. 

128)  663 

V.  Seller  (23  Penn.  424)  528 

V.  The     Hundred     of     Regland 

(Peake's  A.  C.  203)  692 

V.  The   Steamboat  New  England 

(17  Mo.  290)  407 

V.  Vorley  (9  Bing.  93,  95)  421 

V.  Woods  (3  Humph.  60)  508 

Portman  v.  Middleton  (4  C.  B.   [N.  S.] 

322)  84 

Posey  V.  Garth  (7  Mo.  94)  237 

Potter  V.  Lansing  (1  Johns.  215)  596 

V.  Merchants'  Bank  (28  N.  Y.  641)  563 

V.  Scale  (5  Cal.  410)  707 

V.  Thompson  (22  Barb.  87)  707 

Potts  V.  Electric   Tel.    Co.   (8   Monthly 

Law  Rep.  477)  413 

Pottstown  Gas  Co.  v.  Murphy  (39  Penn. 

257)  666 

Poulton  V.  Lattimore  (4  Man.  &  R.  208  ; 

9  Barn.  &  C.  259)  329,  509 

Pounsett  V.  Fuller  (17  C.  B.  660)         223,  228 
Pow  V.  Davis  (1  Best  &  S.  220;    4L.  T. 

R.  [N.  S.]  399)  327 

Powel  V.  Hord  (1  Strange,  650)  593 

Powell  V.  Burroughs  (54  Penn.  St.  329)      480 

V.  Hinsdale  (5  Mass.  343)  583 

V.  Monson   &  Brimlield's  Manuf. 

Co.  (3  Mason,  347)  141 

V.  Salisbury    (2    Young   &  Jerv. 

391)  95 

V.  Smith  (8  Johns.  249)  342 

V.  Trustees  of  Newburgh  (19  Johns. 

284)  391 

Powers  V.  Ware  (4  Pick.  106)  112 

Prader  v.  Grimm  (28  Cal.  11)  453 

Pratt  V.  Battels  (28  Vt.  685)  640 

V.  Boyd  (17  Ind.  232)  707 

V.  Menkins  (18  Mo.  158)  512 

Preble  v.  Baldwin  (6  Cush.  549)  190 

Prentice  v.  Dike  (6  Duer,  220)  319,  328 

Prentiss  v.  Barnes  (6  Allen,  410)  488 

Prescott  V.  Truman  (4  Mass.  627)  191 

President,  &c.,  of  The  Newburyport  Bank 

V.  Stone  (13  Pick.  420)  361 

Pribble  v.  Kent  (10  Ind.  325)  561 

Price  V.  Green  (16  Mees.  &  W.  346)  467 

V.  Justrobe  (1  Hari:)er,  111)  269 

V.  Murray  (10  Bosw.  243)  517 

V.  The  Ship   Uriel   (10  La.   Ann. 

413)  395 

Prickett  v.  Badger  (1  C.  B.  [N.  S.]  296  ; 

37  Eng.  L.  &  E.  428)       219,  391 
V.  Ritter  (16  111.  96)  209 

Prideaux   v.  Bunnett  (1   C.  B.    [N.  S.] 
613)  328 


TABLE   OF    CASES. 


Iv 


Priestly  v.  Northern  Ind.  &  Chicago  R. 

R.  Co.  (26  111.  20.5)  401 

Prior  V.  Wilson  (1  L.  T.  R.  [N.  S.]  549)      80 

Pritchard  v.  Fox  (4  Jones  L.  140)  319 

V.  Long  (9  Mees.  &  W.  666)       146, 

621 
Pritchet  V.  Boevey  (1  Cromp.  &  M.  77.5)  115, 

516,  649 
Probate  Court  v.  Slason  (23  Vt.  306)  52 

Propeller  Monticcllo,  The,  v.  MoUison  (17 

How.  152)  537 

Proprietors  of  the  Quiney  Canal  v.  New- 
comb  (7  Met.  276)  29 
Prosser  v.  Woodward  (21  Wend.  205)         570 
Proudlove  v.  Twemlow  (1   Cromp.  &  M. 

326)  622 

Pryce  v.  Belcher  (3  C.  B.  58)  676 

Prvor's  Appeal  (5  Abbott's  Pr.  R.  272)       707 
Pulcifer  v.  Hotchkiss  (12  Conn.  235)  508 

Puller  V.  Stanilbrth  (11  East,  232)       405,  490 
Pullman  v.  Corning  (9  N.  Y.  [5  Seld.]  93  ; 

14  Barb.  174)  236,  239,  240,  242 

Purcell  V.  Wilson  (4  Grattan,  16)  141 

Purdy  V.  Phillips  (11  N.  Y.  [1  Kern.]  406)  430 
Purton  V.  Honnor  (1  Bos.  &.  P.  205)  104 

Putnam  v.  Wise  (1  Hill,  234)  325 

Putney  v.  Lapham  (10  Cush.  232)  149 

Pym,  Adm'x,  v.  Great  Northern  R'way 
Co.  (32  L.  J.  [N.  S.]  Q.  B.  377  ;  aff'g 
31  L.  J.  [N.  S.]  Q.  B.  249  ;  4  Best  & 
S.  396 ;  atf' g  2  Best  &  S.  759)  646 


Q. 

Quarles  v.  George  (23  Pick.  400)  307 

Quarman  v.  Burnett  (6  Mees.  &  W.  499)  372 
Quarrier  v.  Richards  (7  La.  Ann.  277)  537 
Queen,  The,  v.  Eastern  Counties  Railway 

Co.  (1  Gale  &  Davison,  589)  121 

Quimby  v.  Carter  (20  Me.  218)  671 

Quin  V.  Moore  (15  N.  Y.  432)  44,  53,  647 

V.  City  of  Paterson  (3  Dutch.  [N. 

J.]  35)  121 

Quiney  Canal,  Proprietors  of,  v.  Newcomb 

(7  Met.  276)  30 


R. 


Rad cliff's  Ex'rs  v.  Mavor  of  Brooklyn 

(4  N.  Y.  [4  Comst.]  195)  121,  667 

Railroad  v.  Gesner  (20  Penn.  240)  664 

Raisin  v.  Mitchell  (9  Car.  &  P.  613)  538 

Ralston  v.  The  States  Rights  (Crabbe's 

C.  C.  R.  22)  537 

Ramsay  v.  Gardner  (11  Johns,  439)  391 

Ramsden's  Case  (Clayton,  87)  681 

Ramsden  v.  Manchester  R.  Co.  (1  Exch. 

723)  665 

Rand  V.  White  Mountains  R.  R.  Co.  (40 

N.  H.  79)  295 

Randall  v.  Everest  (2  Car.  &  P.  577)  468,  469 
V.  Raper  (1  Ellis,  B.  &  E.  84)  329 
Randel  v.  Ches.  &  Del.  C.  Co.   (1  Har. 

233)  246 

Randell  v.  Trimen  C37  Eng.  L.  &  E.  275)  105 
Randon  v.  Barton  (4  Tex.  289)  207,  297 


PAGE 

Rankin  v.  Harper  (4  Ind.  585)  503 

Ransom  v.  Halcott  (18  Barb.  56)  592 

V.  N.  Y.  &  Erie  R.  R.  Co.  (15 

N.  Y.  415)  648 

Rapson  v.  Cubitt    ( 1  Car.   &   M.   64  ;    9 

Mees.  &,  W.  710)  372,  656 

Ratcliff  V.  Baird  (14  Tex.  43)  391 

Rathbun  v.  Payne  (19  Wend.  399)  535 

V.  Ranney  (14  Mich.  382)  606 

Ravenscroft  v.  Eyles  (2  Wils.  295)      2,  218, 

587 
Rawdon  v.  Barton   (4  Tex.  289)  291 

Rawlings  v.  Morgan  (34  L.  J.  [N.  S.] 
C.  P.  185;  18  C.  B.  [N.  S.]  776;  11 
Jur.  [N.  S.]  564  ;  12  L.  T.  R.  [N.  S.] 
348)  51 

Rawlinson   v.    Clarke    (14   Mees.   &  W. 

187)  467 

Rawson  v.  Dole  (2  Johns.  454)  589,  597 

V.  Grow  (4  E.  D.  Smith,  18)       433 

Raymond  v.  Andrews  (6  Cush.  265)         129 

V.  Bearnard  (12  Johns.  274)     237 

Rayner  v.  Clark  (7  Barb.  581)  484 

V.  Kinney  (14  Ohio,  283)  629 

Reab  v.  McAllister  (8  Wend.  109)   432,  499, 

500,  501,  508 
V.  Moore  (19  Johns.  337)  237 

Read  v.  Fairbanks  (24  Eng.  L.  &  E.  220 ; 
S.  C.  13  C.  B.  692)  547 

V.  Mutual  Safe  Ins.  Co.  (3  Sandf. 

54)  281 

Reading,  Councils  of,  v.  The  Common- 
wealth (11  Penn.  196)  153 
Readington  v.  Dilley  (4  Zabr.  209)  664 
Ream  v.  Watkins  (27  Mo.  516)  389 
Reason  v.  Wirdnam  (1  Car.  &  P.  434)  366 
Rebecca,  The  (Blatchf.  &  H.  347)  536 
Rector,  &c.,  of  Trinity  Church  v.  Higgins 
(4  Robertson  [N.  Y.  Superior],  1,  372)  52, 

215 
Red  V.  City  of  Augusta  (25  Ga.  387)  72 

Redding  v.  Hall  (1  Bibb,  536)  424 

Redfern  v.  Smith  (8  Mo.  443;  1  Bing. 

382  ;  2  Ibid.  262)  159 

Redfield  v.  Haight  (27  Conn.  31)  343 

Redon  v.  Caffin  (11  La.  Ann.  695)  71 

Reed  v.  Bias  (8  Watts  &  S.  189)  640 

V.  Davis  (8  Pick.  514)  158 

V.  Drake  (7  Wend.  345)  452 

V.  Price  (30  Mo.  442)  144 

V.  Reed  (10  Pick.  398)  440 

V.  Van  Ostrand  (1  Wend.  424)       358 

Reeder  v.  Purdy  (41  111.  279)  640 

Reese  i'.  Stearns  (29  Cal.  273)  _         263 

Reformed  Dutch  Church  in  Saugerties, 

Matter  of  (16  Barb.  237)  143 

Reggio  V.  Braggiotti  (7  Cush.  166)  320,  324, 

326 
Regina  v.  Fall  (1   Q.  B.  636)  51 

V.  Inhabitants  of  Southampton 

(14  Eng.  L.  Sl  E.  116)  665 

V.  Justices  oif  W.  Riding  (19  B. 

624,631)  710 

V.  The  Leeds,  &c..  Railway  Co. 

(11  Eng.  L.  &  E.  484)  664 

V.  The  London  &  Northwestern 
Railway  Co.  (25  Eng.  L.  & 
E.  37)  665 


Ivi 


TABLE   OF   CASES. 


Regina  v.  The  Mayor  of  Lichfield  (15 

Jur.  812)  675 

Reid  V.  Rensselaer  Glass  Factory  (3  Cow. 

393)  429,  435 

Reidhar  v.  Berger  (8  B.  Monr.  160)        643 
Reilly  v.  Jones  (1  Bing.  302)  468 

Reindel  v.  Schell  (4  Jur.  [N.  S.]  310; 

27  L.  J.   [C.  P.]   146)  682 

Reitenbaugh  v.  Chester  Valley  R.  R.  Co. 

(21  Penn.  100)  664 

V.  Liidwick  (31  Penn.  131)  420 
Remelee  v.  Hall  (31  Vt.  582)  118 

Rendall  v.  Hay  ward  (5  Bing.  [N.  C] 

424)  710 

Renick  v.  Orser  (4  Bosw.  384)  38,  589 

Rensselaer  Glass  Factory  v.  Reid  (5  Cow. 

587,  604)  429,  435 

Rexford  v.  Knight  (15  Barb.  627;  S.  C. 

11  N.  Y.  [1  kern.]  308)  664,667 

Reynolds  v.  Bank  of  Indiana  (1  Am. 

Law  Reg.  [N.  S.]  669)        261 
V.  Bridge  (6  L.  &  B.  528 ;  S. 
C.  37  Eng.  L.  &  E.  122) 

467,  479,  481 
V.  Chandler  River  Co.  (43  Me. 

513)  147 

V.  Cox  (11  Ind.  262)  504,  656 

V.  Shuler  (5  Cow.  323)       568,  573 
V.  Tucker  (6  Ohio,  516)  628 

V.  Williams  (1   Tex.  311)  143 

Rhey  v.  Ebensburg  &  Susquehanna  Plank 

Road  Co.  (27  Penn.  261)  418 

Rhoads  v.  Woods  (41  Barb.  471)  581 

Rhode  Island,  The  (2  Blatch.  Il3)  536 

Rhode  Island,  The  (Olcott,  505  ;  1  Ab- 
bott's Adm.  R.  100)        536 
Rhodes  v.  Baird  (16  Ohio,  573)  77 

V.  Bunch  (3  McCord,  66)  638 

Rice  V.  Austin  (17  Mass.  197)  105 

V.  Baker  (2  Allen,  411)  210 

V.  Dwight  Manuf.  Co.  (2  Cush.  80)    238 
V.  Hollenbeck  (19  Barb.  664)  559 

V.  Montpelier  (19  Vt.  471)  535 

V.  Nickerson  (9  Allen,  478)  619 

Rich  V.  Bell  (16  Mass.  294)  601 

Richards  v.  Barton  (1  Esp.  N.  P.  268)    196, 

430 
V.  Booth  (4  Wis.  67)  634 

V.  Edick  (17  Barb.  260)     204,  480, 

483 
V.  Farnham  (13  Pick.  451)  517,  651 
V.  Gilmore  (11  N.  H.  493)  611 
V.  Morse  (36  Me.  240)  610 

V.  Randall  (4  Gray,  53)  129 

V.  Rose  (24  Eng.  L.  &  E.  406)  710 
V.  Sandford  (2  E.  D.  Smith,  349) 

710 

V.  Westcott  (2  Bosw.  589)  400 

Richardson  v.  Barker  (7  Ind.  567)  637 

V.  Chason  (10  Q.  B.  756)      115, 

680 

V.  Dunn  (30  L.  J.  [N.  S.]  C. 

P.  44  ;  2  L.  T.  R.  [N.  S.] 

430  ;  8  C.  B.  [N.  S.J  655)     84 

V.  Keerly  (22  Ga.  62)  180 

V.  Mellish  (2  Bing.  229)  389 

V.  Milburn  (11  Md.  340)  95 

V.  Nourse  (3  B.  &  Aid.   237)  280 


Richardson  v.  Presnall  (1  McCord,  192)   276 
V.  Roberts  (23  Ga.  215)  629 

V.  Robertson  (1  Mees.  &  W. 

463)  513 

V.  Sanborn  (33  Vt.  75)  503 

V.  Vermont  Cent.  R.  R.  Co. 

(25  Vt.  465)  663 

Richmond  v.  Bronson  (5  Denio,  55)  429,  442 
V.  Sacramento  Valley  R.  R. 

Co.   (18  Cal.  351)  534 

Rickert  v.   Snyder   (9   Wend.  416)  162, 

186,  194 
Ricketson  v.  Richardson  (19  Cal.  330)    452, 

480 

Ricketts  v.  Lostetter  (19  Ind.  125)  183 

Riddle  v.  Driver  (12  Ala.  590)  563 

Rider  v.  Kelley  (32  Vt.  268)  306 

V.  Pond  (19  N.  Y.  262)  208 

V.  Union  Rubber  Co.  (4  Bosw.  169) 

557 
Ridgely  v.  Bond  (18  Md.  433)  146 

Rigg  V.  Parsons  (cited,  2  East,  156)  159 

Riggs  V.  Lindsay  (7  Cranch,  500)  271 

V.  Thatcher  (1   Greenl.  68)  611 

Rinehart  v.  Olwine  (5  Watts  &  S.  157)  316 
Ringgold  V.  Haven  (1  Cal.  108)  395 

Ripka  V.  Sergeant  (7  Watts  &  S.  9)  45,  159 
Ripley  v.  Davis  (15  Mich.  75)  545 

Rippeyy.  Miller  (11  Ired.  247)  527 

Ritchie  v.  Mauro  (2  Pet.  243)  683 

V.  Shannon  (2  Rawle,  196)  453 

Rittenhouse  v.  The  Independent  Line  of 

Telegraph  (1  DaJy,  474)  410 

Roach  V.  Thompson  (1  Mood.  &  M.  487; 

4  Car.  &  P.  194)  276,  366 

Robb  V.  Maysville  &  Mt.  S.  Turnpike  Co. 

(3  Mete.  [Ky.]  117)  663 

Robbins  v.  Fitz  (33  N.  Y.  420)  421 

V.  Hudson  River  R.  R.  Co.  (7 

Bosw.  1)  710 

V.  Packard  (31  Vt.  570)  564 

Robbins,  Adm'rs,  v.  Walters  (2  Tex. 

130)  40,  583 

Robert  Mary's  Case  (9  Coke,  112)  46 

Roberts  v.  Carter  (28  Barb.  462)  324 

V.  Connelly  (14  Ala.  235)  633 

V.  Failis  (1  Cow.  238)  711 

V.  Fleming  (31  Ala.  683)  324 

V.  Graham  (6  Wallace,  578)  677 

V.  Helm  (27  Ala.  678)  528 

V.  Marston  (20  Me.  275)  195 

V.  Mason  (10  Ohio,  277)  106,  529,  530 
V.  Hyde  (15  La.  Ann.  51)  677 

V.  Roberts  (33  L.  J.  [N.  S.]  Q. 

B.  249  ;  5  Best  &  S.  384)      627 
V.  Thomas  (6  T.  R.  88)  607 

Robertson  v.  County  Commissioners  (5 

Gilman,  559)  600 

V.  Davenport  (27  Ala.  574)        508 
V.  Dumaresq  (2  Moore,  P.  C. 
[N.  S.]  66  ;  13  Weekly  Rep. 
280)  202 

Robeson  v.  Whitesides  (16  Serg.  &  R. 

320)  471,  480 

Robinson  v.  Bakewell  (25  Penn.  424)   471, 480 

V.  Barrows  (48  Me.  186)  552 

V.   Bland  (2  Burr.  1077,  1086)   9, 

110,  260,  275,  429,  430,  494 


TABLE   OF    CASES. 


Ivii 


529 
131 

465 
538' 


Eobinson  v.  Burton  (5  Hamng.  [Del.] 
335) 
V.  Campbell  (3  Wheat.  212) 
V.  Cathcart  (2  Cranch,  C.  C. 

590) 
V.  Cone  (22  Vt.  213) 
V.  Corn  Exch.  Ins.  Co.  (1  Ab- 
bott's Pr.  R.  [N.  S.J  186)  284, 
429 
r.  Drummond  (24  Ala.  174)      629 
V.  Flint  (16  How.  Pr.  240)         228 
V.  Harman  (1  Exch.  850)  69,  197, 
214,  228 
V.  Kinney  (2  Kansas,  184)  458 

V.  Mace  (16  Ark.  97)  499 

■  V.  Mansfield  (13  Pick.  139)  606 
V.  Marchant  (7  Q.  B.  918)  682 
V.  Noble  (8  Peters,  181)  405 

V.  Reynolds  (2  Q.  B.  196)         705 
V.  Robinson  (1  Duval  [Ky.], 

162)  662 

V.  Rupert  (23  Penn.  523)  528,  637 
V.  Varnell  (16  Tex.  382)  218,  229, 

424 
Robson  V.  Godfrey  (1  Holt's  N.  P.  Cas. 

236)  242 

Rochester  &  Syracuse  R.  R.  Co.  (20  Barb. 
N.  Y.   282;  18  N.  Y.  534)  90 

Rockfeller  v.  Donnelly  (8  Cow.  623,  639)      348 
Rockwood  V.  Allen  (7  Mass.  254)  26 

Rodemer  v.  Hazelhurst  (9  Gill,  288)  238 

Rodes  V.  Bronson  (34  N.  Y.  649)  263 

Rodman  v.  Hedden  (10  Wend.  498)    117,  342, 

356 
Rogers  v.  Beard  (36  Barb.  31  ;  20  How. 

Pr.  98)  72 

V.  Burns  (27  Penn.  525)  445 

V.  Coleman  (3  Cow.  62)  689 

V.  Kneeland  (10  Wend.  219 ;  13 

Ibid.  114)  391 

V.  Mechanics'  Ins.  Co.  ( 1  Story, 

603)  253,  287,  699 

V.  Parham  (8  Ga.  [Cobb]  190)      246 

V.  Spence  (13  Mees.  &  W.  571)     520 

V.  Wing  (5  How.  Pr.  50)  129 

Rohr  V.  Kindt  (3  Watts  &  S.  563)  207 

Roles  V.  Rosewell  (5  T.  R.  538)  451 

Rolfe  V.  Peterson  (2  Bro.  P.  C.  436)         461 

Rolin  V.  Steward  (25  Eng.  L.  &  E.  341  ; 

S.  C.  14  C.  B.  595)  50,81,  83 

Romaine  v.  Van  Allen  (26  N.  Y.  309)    550, 

552,  553 
Romig  V.  Romig  (2  Rawle,  241)  566 

Ronneberg  v.  Falkland  Islands  Co.  (17 
C.  B.  [N.  S.]  1  ;  34  L.  J.  [N.  S.]  C.  P. 
34)  84 

Roosevelt  v.  Bull's  Head  Bank  (45  Barb. 

579)  262 

Root  V.  Lowndes  (6  Hill,  518)  110 

Rootes  V.  Stone  (2  Leigh,  650)  611 

Roper  V.  Clay  (18  Mo.  383)  422 

Rose  V.  Beattie  (2  Nott  &  McC.  538)        222 
I?.  City  of  Bridgeport  (17  Conn. 

243)  440 

V.  Lewis  (10  Mich.  483)  564 

V.  Miles  (4  Maul.  &  S.  101)        29,  153 
i;.  Story  (1  Barr,  191)  604 

V.  Wallace  (11  Ind.  112)  325 


Rosewell  V.  Prior  (12  Mod.  635  ;  1  Ld. 

Raym.  713  ;  2  Salk.  460) 
Ross'y.  Philbrick  (39  Me.  29) 
Rotan  V.  Fletcher  (15  Johns.  207) 
Roth  V.  Smith  (41   111.  314) 
Roimds  V.  Mumford  (2  R.  I.  154) 
Roush  V.  Walter  (10  Watts,  86) 
Rowand  v.  Bellinger  (3  Strobh.  373) 
Rowe  V.  Moses  (9  Rich.  L.  423) 

V.  Richardson  (5  Barb.  385) 
Rowland  v.  Rowland  (8  Ohio,  40) 
Rowland's    Adm'rs  v.   Shelton   (25  Ala. 

217) 
Rowley  v.  Gibbs  (14  Johns.  385)  441,  578, 
Rowntree  v.  Jacob  (2  Taunt.  141) 
Roy  V.  Duke  of  Beaufort  (2  Atk.  190) 
Rovalton  v.  R.  &  W.  Turnpike  Co.  (14 

■Vt  311) 
Ruckman  v.  Pitcher  (20  N.  Y.  9)        434, 
Rudder  v.  Price  (1  H.  Bl.  547)  9, 247,  248, 

Rundle  v.  Little  (6  Q.  B.  174) 

V.  Moore  (3  Johns.  Cas.  36) 
Runey  v.  Edmonds  (15  Mass.  291) 
Runlett  V.  Bell  (5  N.  H.  433) 
Runyan  v.  Nichols  (11  Johns.  547) 
Russ  V.  Steamboat  War  Eagle  (14  Iowa, 

363) 
Russell  V.  Palmer  (2  Wils.  325)  373, 

V.  Roberts  (3  E.  D.  Smith,  318) 
V.  Shuster  (8  Watts  &  S.  308) 
V.  Tomlinson  (2  Conn.  206) 
V.  Turner  (7  Johns.  189) 
Rutland  &  Washington  R.  R.  Co.  v.  Bank 

of  Middlebury  (32  Vt.  639) 
Ryan  v.  Dayton  (25  Conn.  188) 
V.  Martin  (16  Wise.  57) 
V.  N.  Y.  Central  R.  R  Co.  (35  N. 
Y.  210) 
Rybum  v.  Pryor  (14  Ark.  505) 
Ryder  v.  Hathaway  (2  Mete.  96 ;  21  Pick. 
298)  53, 

V.  Thayer  (3  La.  Ann.  149)       226, 
Ryers  v.  Wheeler  (Hill  &  D.  Supp.  389) 


PAGE 

155 

605 
570 
640 
664 
154 
680 
634 
342 
144 

330 
582 
183 
459 

251 
435 
255, 
447 
119 
379 
178 
611 
495 

118 

589 

232 

638      * 

670 

597 

568 
390 
481 

89 
545 

559 
382 
128 


Sabin  v.  Vermont  Central  R.  R.  Co.   (25 

Vt.  363)  663 

Sackett  v.  McComb  (11  La.  Ann.  325)  537 

V.  Sackett  (8  Pick.  309)  158 

Sackrider  v.  Beers  (10  Johns.  241)  148 

Safely  v.  Gilmore  (21  Iowa,  588)  312 

Safford  v.  Drew  (3  Duer,  627)  647 

Sage  V.  Gittner  (11  Barb.  120)  512 

Sager  v.  Nichols  (1  Daly,  1)  686 

Sainter  v.  Ferguson  (7  C.  B.  716)  467 

Salkard  v.  Beckwith  (1  Lester,  116)  213 

Salle  V.  Light's  Exr's  (4  Ala.  700)  332 

Salmon  v.  Smith  (1  Saund.  207)  688 

Saltus  V.  Everett  (20  Wend.  267,  273)  512 

V.  Kipp  (2  Abbott's  Pr.  R.  382)  682 

Sammis  v.  Clark  (13  111.  544)  429 

Sanborn  V.  Emerson  (12  N.  H.  58)  611 

V.  Herring  (6  Am.  Law  Reg.  [N. 

S.]  457)  329 

V.  Neilson  (4  N.  H.  501 )  529 


Iviii 


TABLE    OF    CASES. 


PAGE 

Sanborn  v.  Webster  (2  Minn.  323)  87 

Sanderlin   v.  Shaw  (6  Jones  L.    [N.   C] 

225)  142 

Sanders  v.  Anderson  (10  Rich.  Eq.  [S.  C] 

232)  9 

Sands  v.  Taylor  (5  Johns.  395)  313,  314 

Sanford  v.  Eighth  Ave.  R.  R.  Co.  (23  N. 

Y.  343)  539 

V.  Handv  (23  Wend.  260)        226,  656 
w.  Hays'(52Penn.  9)  261 

Sangamon,  County  of,  v.  Brown  (13  111. 

207)  664 

Sangamon  &  Morgan  R.  R.  Co.  v.  Henry 

14  111.156)  395 

Sanquer  v.  The  London,  &c.,  Railway  Co. 

(.32  Eng.  L.  &  E.  338)  397 

Santa  Maria,  The  (10  Wheat.  431,  442)      444 
Sargeant  v.  Kellogg  (5  Gilm.  273)  488 

Sargent  y. (5  Cow.  106)        528,  633,  6.34 

V.  Franklin  Ins.  Co.  (8  Piek.  90)  420, 

549 
V.  Hampden  (38  Me.  581 )  441 

V.  Pomeroy  (33  Me.  388)  610 

r.  Smith  (12  Gray,  426)  129 

V.  Southgate  (5  Pick.  312)  358 

Saulters  v.  Town  of  Victory  (35  Vt.351)  228 
Saunders  v.  London  &  N.  W.  R.  R.  Co. 

(2L.  T.  R.  [N.  S.]  153)  707 

Savage  v.   Corn   Exchange  Ins.   Co.   (4 

Bosw.  1)  279 

*  V.  Gunter  (32  Ala.  467)  6lO 

Savignac  v.  Roome  (6  T.  R.  125)  37 

Savil  V.  Roberts  ( 1  Salk.  13  ;  1  L.  Raym. 

374  ;  12  Mod.  208)  104,  654 

Sawyer  v.  Mclntyre  (18  Vt.  27)  204,  477 

r.  Whittier  (2  N.  H.  315)  611 

Saxton  V.  Bacon  (31  Vt.  540)  95 

V.  Williams  (15  Wise.  292)  556 

Sayre  v.  Austin  (3  Wend.  496)  442,  445 

V.  Savre  (1  Dutch.  [N.  J.]  235)         630 

Schenck  v.  Dart  (22  N.  Y.  420)  9 

Scherpf  v.  Szadeczky  (1   Abbott's  Pr.  R. 

366  ;  4  E.  D.  Smfth,  110)  707,  709 

Schieffelin  v.  Carpenter  (15  Wend.  400)      210 
V.  N.  Y.  Ins.    Co.   (9   Johns. 

21)  278 

Schindel  v.  Schindel  (12  Md.  108)  616 

Schlemmer  v.  North  (32  Mo.  206)         131,  1.34 
Schley  v.  Lyon  (6  Ga.  530)  549 

Schnable  v.  Koehler  (28  Penn.  181)  150 

Schnerr  v.  Lemp  (19  Mo.  40)  237 

Schofield  V.  Ferrers  (46  Penn.  438)      582,  678 
School  Commissioners  v.  Aiken   (14  Ala. 

[0.  S.]  169)  393 

Schooley  v.  Stoops  (4  Ind.  130)  195 

Schooner  Lively,  The  (1  Gall.  314,  325)  70,  536 
Schoonover  v.  Rowe  (7  Blackf.  202)  630 

Schuyler  v.  Sylvester  (4  Dutch.  [N.  J.] 

487)  453 

Schuylkill  Nav.  Co.  v.  Thorbum  (7  Serg. 

&R.  411)  663 

Schwerin  v.  McKie  (5  Robertson,  N.  Y. 

Superior,  404)  442 

Scofield  V.  Dav  (20  Johns.  102)  266 

Scott  V.  Bay  (3  Md.  431)  87 

V.  Bevan  (2  Barn.  &  Ad.  78)  265 

V.  Dublin   &  Wicklow   Railw.   Co. 

J....  11  Ir.  Com.  L.  [N.  S.]  377)       534 


Scott  V.  Godwin  (1  Bos.  &.  P.  67,  75)  570 

V.  Henley  (1  Moo.  &  R.  227)  596 

V.  Hughes  (9  B.  Monr.  104)  584 

V.  Hunter  (46  Penn.  192)  67 

V.  Lunt's  Adm'r  (6  Peters,  .349)         683 
V.  Rogers  (31  N.  Y.  676)    551,  552,  553, 

5.54 
V.  Shepherd  (2  Wm.  Bl.  892)         67, 86, 

95 
V.  Tyler  (14  Barb.  202)  342 

Scoville  V.  Griffith   (12  N.   Y.  [2  Kern.] 

509)  401 

Scranton  v.  Tilley  (16  Tex.  183)  319 

Scrugham  v.  Carter  (12  Wend.  131)  581 

Seals  V.  Cummings  (8  Humph.  442)  563 

Seaman  v.  Luce  (23  Barb.  240)  581 

Seamore  v.  Harlan's  Heirs  (3  Dana,  410, 

415)  181 

Searight  v.  Calbraith  (4  Dall.  325)  261 

Searle  v.  Lackawanna  &  Bloomsburg  R. 

R.  Co.  (33  Penn.  57)  662 

Sears  v.  Dewing  (14  Allen,  413)  262 

V.  Hathaway  (12  Cal.  277)  642 

V.  Lyons  (2  Stark.  317)  520 

V.  Wingate  (3  Allen,  103)  505 

Seat  V.  Moreland  (7  Humph.  575)  216 

Seaton  v.  Second  Municipality  (3  La.  Ann. 

44)  76,  250,  416,  417,  698 

Seaver  v.  Morse  (20  Vt.  620)  238 

Seay  v.  Greenwood  (21  Ala.  491)  453,  454 
Sedgworth  v.  Overend  (7  T.  R.  279)  570 

Seeber  v.  Yates  (6  Cow.  40)  689 

Seeley  v.  Bishop  (19  Conn.  128)  153 

Seger  i;.  Town  of  Barkhamsted  (22  Conn. 

290)  648 

Segura  v.  Reed  (3  La.  Ann.  695)  395 

Sefdensparger  v.  Spear  (17  Me.  123)  45,  668 
Selden  v.  Cashman  (20  Cal.  56)  87,  531,  532 
Selfridge  v.  Lithgrow  (2  Mass.  374)  601 

Selkirk  v.  Cobb  (13  Gray,  313)  311,  542 

Selleck  v.  French  (1  Conn.  32)  436 

Seller  v.  Work  (Marsh,  on  Ins.  243)  380 

Sewall  V.  Lancaster  Bank  (17  Serg.  &  R. 

285)  566 

Sewall's  Falls  Bridge  v.  Fisk  (3  Foster, 

171)  88 

Sexton  V.  Brock  (15  Ark.  345)  707 

Se}Tnour  v.  Carter  (2  Mete.  520)  668 

V.  Davis  (2  Sandf.  240)  505 

V.  Harvey  (8  Conn.  63)  591 

V.  McCormick  (16  How.  [U.  S.] 

480;  19  How.  [U.  S.]  96)    110, 
528,  674,  675 
Shackford  v.  Goodwin  (13  Mass.  187)  601 

Shadwell  v.  Hutchinson  (3  Car.  &  P.  615  ; 

4  Car.  &  P.  .333)  150 

Shadwick  v.  McDonald  (15  Ga.  392)  129 

Shaffer  v.  Lee  (8  Barb.  412)  116,  248,  250 

Shank  v.  Case  (1  Ind.  170)  629 

Shannon  v.  Burr  (1  Hilt.  39)  44,  48,  516 

V.  Comstock  (21  Wend.  457)        204, 
229,  324,  405 
Sharon  v.  Mosher  (17  Barb.  518)        320,  325, 

531 
Sharp  V.  Mayor,  &c.,  of  N.  Y.  (40  Barb. 

256)  6.56 

Sharpe  v.  Brice  (2  Wra.  Bl.  942)  528 

V.  Hunter  (16  Ala.  765)  643 


TABLE   OF    CASES. 


lix 


Shattiick  V.  The  Wilton  R.  R.  (3  Fost. 

269)  663 

Shaw  V.  Arden  (9  Bing.  287)  509 

V.  Boston  &  Worcester  R.  R.  Co.  (8 

Gray,  45)  647,699,709 

V.  Bradstreet  (13  Mass.  241)  178 

V.  Cummiskey  (7  Pick.  76)  154 

V.  Etheridge  (3  Jones  L.  300)  114 

V.  Holland  n5  Mees.  &  W.  136)  295,  306 
V.  Mavor,  i^c,  of  Macon  (19  Ga. 

468)  111 

V.  The  South  Carolina  R.  R.  Co. 

(5  Rich.  L.  462)  395 

V.  Wallace  (1  Butcher,  453)  73 

V.  White  (13  Johns.  179)  140,  141 

V.  Wilkins  (8  Humph.  647)  181 

Shay  V.  Tuolumne  Water   Co.  (6  Cal. 

286)  690 

Sheels  v.  Davies  (4  Camp.  119)  511,  512 

Sheets  v.  Andrews  (2  Blackf.  274)  182 

Sheiiill  v.  Van  Deusen  (15  Gray,  485)         718 
Shelby ville  Lateral  Branch  R.  R.  Co.  v. 

Lewark  (4  Lid.  471)  536 

Sheldon  v.  Sherman  (42  Barb.  368)  254 

V.  Van  Slyke  (16  Barb.  26)    133,  688 
Shepard  v.  Milwaukee  Gas-light  Co.  (15 

Wise.  318)  76,  77,  80 

V.  Ryers  (15  Johns.  497)  207 

Shepherd  v.  Hampton  (3  Wheat.  200)        299 

V.  Johnson  (2  East,  211)      293,  548 

V.  Pybus  (4  Scott  [N.  R.J,  434)    328 

w.  \tillis  (19  Ohio,  142)  695 

Sheriffs  of  Norwich  v.   Bradshaw  (Cro. 

Eliz.  53)  593 

Sherman  v.  Dutch  (16  111.  283)  528,  622 

V.  The  Fall  River  Iron  Works 

Co.  (5  Allen,  213)  570 

V.  Roberts  (1  Grant's  Gas.  261)      72 
V.  Wells  (28  Barb.  403)     *  395 

Sherrm  v.  Shuford  (10  Ired.  L.   [N.  C] 

200)  596,  600 

Sherrod  v.  Langdon  (21  Iowa,  518)  333 

Sherry  v.  Frecking  (4  Duer,  452)  688 

V.  Schuyler  (2  Hill,  204)  641 

Sherwood  v.  Sutton  (5  Mason,  1)  653 

Shewel  v.  Fell   (3   Yeates,   17;  S.  C.  4 

Yeates,  47)  611 

Shields  v.  Henderson  (1  Litt.  239)  144 

V.  Pettee  (2  Sandf.  262)  312 

V.  Washington  Tel.  Co.  (9  West. 

L.J.  283)  411 

Shiell  V.  McNitt  (9  Paige,  101)  475 

Shilling  V.  Carson  (27  Md.  175)  628 

Shipton  V.  Casson  (5  Barn.  &  C.  378)  239 

Shirley  v.  Jacobs  (2  Bing.  [N.  C]  88)        513 
Shoe  &  Leather  Bank  v.  Van  Dyck  (27 

N.  Y.  400)  261 

Sholenberger  v.  Brinton  (52  Penn.  9  ;  3 

Am.  Law  Reg.  [N.  S.]  591)  261 

Short  V.  Kalloway  (11  Ad.  &  E.  28)  363 

V.  Skipwith  (1  Brock.  103,  115)  33 

Shotwell  V.  Wendover  (1  Johns.  65)    546,  548 
Shoulty?;.  Miller  (1  Ind.  544)  629,  630 

Shreve  v.  Brereton  (51  Penn.  175)  467 

Shult  V.  Barker  (12  Serg.  &  R.  272)  159 

Shultz  V.  Morrison  (3  Mete.  [Ky.]  98)         453 
Shute  V.  Taylor  (5  Mete.  61 )  476 

Sibley  v.  Hoar  (4  Gray,  222)  83 


PAGE 

Sibley  V.  Hulbert  (15  Gray,  509)  718 

Sickles  V.  Fort  (15  Wend.  559)  503 

Sidener  v.  Essex  (22  Ind.  201 )  663 

Sikes  V.  Wild  (4  Best  &  S.  421  :  32  L.J. 
[N.  S.]  Q.  B.  375 ;  aflfg.  1  Best  &  S. 
587  ;  5  L.  T.  R.  [N.  S.]  422)  196 

Sill  V.  Rood  (15  Johns.  230)  496 

Sills  V.  Brown  (9  Car.  &  P.  601 )  538 

Silsbury  v.  McCoon  (6  Hill,  425  ;  4  Denio, 

332)  560,  574 

Simmons  v.  Bradford  (15  Mass.  82)  607 

V.  Brown  (5  R.  I.  299)  86,  148 

V.  Cutreer    (12    Smedes  &   M. 

584)  508 

V.  Rose  (31  Beavan,  1 )  589 

Simons  v.  Patchett  (7  Ellis  &  B.  568)  331 

Simpkins  v.  Low  (49  Barb.  382)  717 

Simpson  v.  Griffin  (9  Johns.  131)        276,  362 

V.  Seavey  (8  Greenl.  138)  153 

Sims  V.  Glazener  (14  Ala.  695)  625 

V.  Goudelock  (7  Rich.  L.  23)  453 

Sinclair  v.  Bowles  (9  Barn.  &  C.  93)  237 

V.  Tallmadge  (35  Barb.  602)  234 

V.  Tarbox  (2  N.  H.  135)  529 

Singapore  and  Hebe,  The  (4  Moore  P.  C. 

[N.  S.]271)  537 

Singer  v.  Farnsworth  (2  Ind.  597)  235 

Singleton's    Adm'r   v.    Kennedy  (9   B. 

Monr.  222)  540 

Sir  Baptist  Hixt's  Case    (2  Rolle's  Abr. 

703)  19,216 

Sisson  V.  Cleveland  &  Toledo  R.  R.  Co. 

(14  Mich.  489)  403 

Skinner  v.  Gunton  (1  Saund.  228  d)  654 

V.  HousatonicR.  R.  Co.  (1  Cush. 

475)  99 

V.  Tinker  (34  Barb.  333)  100 

Slacum  V.  Pomery,  (6  Cranch,  221)  275 

Slade's  Case  (4  Coke,  92)  235,  247,  489 

Slater  v.  Emerson  (19  How.  [U.  S.]  224)    235 

u.  Rink  (18  111.  527)  648 

Slaughter  v.  McRae  (3  La.  Ann.  455)  323 

Slingerland  v.  Swart  (13  Johns.  255)  433 

Sloan  V.  Johnson  (14  Smedes  &  M.  47)       670 

V.  Petrie  (15  111.  425)  629 

Sloman  v.  Walter  (1  W.  Brown's  R.  419)  462 

Slosson  V.  Beadle  (7  Johns.  72)  470 

Small  V.  Douthitt  (1  Kansas,  335)  458 

V.  Reeves  (14  Ind.  164)  187 

Smedes  v.  Hooghtaling  (3  Caines,  48)  453,  482 

'Smeed  v.  Foord  (1  Ellis  &  E.  602 ;  28  L.  J. 

[N.  S.]  Q.  B.  178)  80,  81,  83,  402 

Smethursty.  Woolston  (5  Watts  &  S.  106)  130 

Smiles  v.  Hastings  (24  Barb.  44)  142 

Smith  V.  Berry  (18  Me.  122)  307 

V.  Brady  (17  N.  Y.  173)  236 

V.  Cansey  (22  Ala.  568)  670 

V.  Compton  (3  Barn.  &  Ad.  407)      167, 

365 
V.  Condry  (1  How.  28)  71,  536 

V.  Cozart  (2  Head  [Tenn.],  526)        320 
V.  Dickinson  (3  Bos.  &  P.  630,  632)  468, 

476 
V.  Dobson  (3  Scott  [N.  R.],  336)  706 
r.Dunlap  (12  111.  184)  291,552 

V.  Eakin  (2  Sneed,  456)  528 

V.  First  Cong.  Meeting-house  in 

Lowell  (8  Pick.  178)  239 


Ix 


TABLE    OF   CASES. 


Smith  V.  Foster  (36  Vt.  705) 
V.  Fox  (12  Jur.  130) 
V.  Gonder  (22  Ga.  353) 
V.  Griffith  (3  Hill,  333) 
V.  Gugcrty  (4  Barb.  615) 
V.  Hart  (2  Bay,  395) 
V.  Helmer  (7  Barb.  416) 
V.  Hill  (22  Barb.  656) 
V.  Honey  (3  Peters,  469) 
V.  Hyndman  (10  Gush.  554) 
V.  Jefts  (44  N.  H.  482) 
V.  Lockwood  (13  Barb.  209) 


PAGE 

239 
113 
625 
402,  657 
696 
611 
667 
695 
683 
644 
52 
151 
V.  Lush  (4  Bibb,  502)  '        525,  533 

V.  Hasten  (15  Wend.  270)  709 

V.  McGuire  (3  Hurl.  &  N.  554)  405 

V.  New  Haven  &  Northampton  R. 

R.  Co.  (12  Allen,  531)  402 

V.  Peat  (9  Exch.  161)  150,  200 

V.  Richardson  (3  Cal.  219)  397,  398 
V.  Shaw  (2  Wash.  C.  C.  R.  167)  265 
V.  Sherman  (4  Gush.  408)  677 

V.  Sherwood  (2  Tex.  460)  25,  526,  616 
V.  Silence  (4  Iowa,  321)  627 

V.  Smith  (39  Penn.  441)  628 

t;.  Smith    2  Pick.  621)  154 

V.  Smith  (4  Wend.  468)  472 

V.  Steinkamper  (16  Mo.  150)  320 

V.  Strong  (14  Pick.  128)  178,  186 

V.  Syraouds  (1  L.  T.  R.  [N.  S.]  299) 

706 
V.  Thackerah  (1  L.  R.  [C.  P.]  564)  55 
V.  Thompson  (8  C.  B.  44)  388 

V.  Tooke  (20  Tex.  750)  588 

V.  Wainwright  (24  Vt.  97)  467,  480 
V.  Whitaker  (23  111.  367)  455 

V.  Woodfine  (1  C.  B.  [N.  S,  660]  422 
Smith,  Adm'x,  v.  London  &  N.  W.  Rail- 
way Co.  (1  Code  Reporter,  32)  646 
Smithwithw.  Ward,  (7  Jones  L.  [N.  C]  64)  530 
Snedicor?;.Davis(17  Ala.472)  117 
Snell  V.  Bridgewater  C.  G.  Manuf.  Co.  (24 

Pick.  296)  668 

Snow  V.  Eastern  R.  R.  Co.  ( 1 2  Mete.  44)  692, 693 
V.  Inhabitants  of  Ware  (13  Mete.  42)       2 
Snyder  v.  Penn.  R.  R.  Co.  (55  Penn.  340)  664 
Society,  The,  v.  Wheeler  (2  Gal.  105)  178 

Solms  V.  Lias  (16  Abbott's  Pr.  311)  677 

Somerville   &  Eastern   R.  R.  Co.  v. 

Doughty  (2  Zabr.  495)  664,  667 

Soule  V.  White  (14  Me.  436)  557 

South  V.  Denniston  (2  Watts,  474)  633 

Southampton  Dock  Co.  v.  Richards  (1 

Mann.  &  Gr.  448)  442 

Southard  v.  Reford  (6  Cow.  254)  229,  421 

Southern  Railroad  Co.  v.  Kendrick  (40 

Miss.  374)  529,  532 

South  Royalton  Bank  v.  Suffolk  Bank 

(27  Vt.  505)  104 

Sowell  V.  Champion  (6  Adol.  &  E.  407  ; 

2  Nev.  &  P.  627 )  603 

Spain  V.  Arnott  (2  Stark.  256)  237 

Spalding  v.  Vandercook  (2  Wend.  431)       497 
Spark  V.  Heslop  (28  L.  J.  [N.  S.]  Q.  B. 

197)  352 

Spear  v.  Smith  (1  Denio,  464)  472 

y.  Stacy  (26  Vt.  61)  368 

Spencer  v.  Halstead  (1  Denio,  606)  230 

V.  Harford's  Ex'rs  (4  Wend.  381)  418 


PAGE 

Spencer  v.  McMasters  (16  111.  405)       629,  707 
?;.  Pierce  (5  R.  L  63)  438 

V.  Prindle  (28  Cal.  276)  263 

V.  Tilden  (5  Cow.  144)  472,  481 

V.  Utica  &  Schenectady  R.  R.  Co. 

(5  Barb.  337)  535 

Spigelmoyer  v.  Walter  (3  Watts  &  S.  540)  148 
Spikes  V.  English  (4  Strobh.  34)  526,  655 

Spivey  v.  McGehec  (21  Ala.  417)  454 

Spooner  v.  Brooklyn  City  R.  R.  Co.  (31 

Barb.  419  ;  36  Barb.  217)  534 

Spoor  V.  Holland  (8  Wend.  445)  558 

Sprague  v.  Baker  (17  Mass.  586)  168 

V.  West  (1  Abbott's  Adm.  R.  548)  400 
Springy.  Chase  (22  Me.  .505)  188 

V.  Haskel  (4  Allen,  112)  395 

Springdale  Cemetery  Ass'n  v.  Smith  (24 

lU. 480)  220 

Sproule  V.  Ford  (3  Littell,  25 )  549 

Spurrier  v.  Elderton  ( 5  Esp.  1 )  365 

Squieru.  Gould  (14  Wend.  159)  679 

Squire  v.  Hollenbeck  (9  Pick.  551 )  640 

Staats  V. Ten  Eyck's  Ex'rs  (3  Gaines,  111 )  105, 

168,189 
Stacey  v.  The  Vermont  Central  R.  R.  Co. 

(1  Williams,  39)  663 

Stacy  V.  Kemp  (97  Mass.  166)  508 

Stainbackw.  Rae(14How.  532)  537 

Stanard  v.  Eldridge  (16  Johns.  254)  190 

Stanbrough  v.  Barnes  (2  La.  Ann.  376)        131 
Stanton  f.  Henderson  (1  Ind.  69)  688 

t;.  Small  (3  Sandf  230)  318 

Staple?;.  Spring  (10  Mass.  74)  155,156 

Stark  V.  Parker  (2  Pick.  267)  238 

Starr  v.  Camden  R.  R.  Co.  (4  Zabr.  592)       664 
V.  Pease  (8  Conn.  541 )  129 

Startup  V.  Cortazzi  (2  Cr.  M.&R.  165)  304,  306 
State,  The,  use  of  Brooks,  v.  Kirby  (6 

Ark.  45  J)  600 

State,  The,  use  of  Goddard,  v.  Baden  ( 1 1 

Md.317)  591 

State,  The,  use  of  Murray,  v.  Bishop  (24 

Md.  310)  52,  610 

State,  The,  v.  Beackmo  (8  Blackf.  246)  669 

V.  Boscawen  (8  Fost.  195)  663 

V.  Canterbury  (8 Fost.  195)  663 
V.  Cooper  (3  Zabr.  381 )  664 

V.  Dean  (3  Zabr.  335)  664 

V.  Digby  (5  Blackf.  543)  667 

V.  Edwards,  10  Ired.  L.  242)  600 
V.  Jersey  City  (4  Zabr.  662)  664 
V.Johnson  (1  Ind.  158)  610 

y.  Lynes  (4  Ind.  351)  588 

V.  Miller  (3  Zabr.  383)  664 

V.  Reinhardt  (31  Mo.  95)  52 

V.  Smith  (31  Mo.  566)  615 

V.  Thomas  (19  Mo.  613)  454 

V.  Vernon  (25  Vt.  244)  663 

V.  Weston  (17  Wise.  107)    146,  614 
State  Treasurer  v.  Weeks  (4  Vt.  215)  611 

Steamboat  Co.  v.  Whilldin  {14  Harring. 

Del.  228)  536 

Steamboat  New  World  v.  King  (16  How. 

469)       ^  124 

Stearine  Kaarsen  Fabrick  Gonda  Co.  v. 

Heintzmann  (17  C.  B.  [N.  S.]  56)  378 

Stearns  v.  Barrett  (1  Pick.  443)  476 

V.  Marsh  (4 Denio,  227)  419,  506,  556 


TABLE   OF   CASES. 


Ixi 


PAGE 

Stearns  v.  McCiillouph  (18  Mo.  411)  320 

V.  Swift  (8  Tick.  532)  140 

Steele  v.  President  of  Western  Inland 
Lock  Navigation  Co.  (2  Johns. 

283)  121,687,  688 

V.  Sawyer  (2  McCord,  459)  276 

V.  Smith  (3  E.  D.  Smith,  321)  670 

Stees  V.  Kemble  (27  Penn.  112)  628 

Steiger's  Adm'r  v.  Hillen  (5  Gil)  &  J.  121) 

140 
Stephens  v.  Beard  (4  Wend.  604)  498 

Stephenson  v.  Little  (10  Mich.  433)  559 

Sterling  v.  Peet  (14  Conn.  245)  179 

Sterrett's  Ex'r  v.  Raster  (1  Ala.  Sel.  Cas. 

404)  606,  614 

Stetson  V.  Faxon  (19  Pick.  147)  29 

Steven's  Ex'rs  v.  Hollister  (18  Vt.  294)       160 

Stevens  v.  Barringer  (13  Wend.  639)  446 

V.  Hartwell  (11  Mete.  542)  90 

V.  Low  (2  Hill,  132)         544,  546,  568 

V.  Rowc  (3  Denio,  327)  592 

Stevenson  v.  Belknap  (6  Iowa,  97)      526,  529, 

631 
V.  Greenlee  (15  Iowa,  96)  334 

V.  Lambard  (2  East,  575)  209 

V.  Maxwell  (2  Comst.  409)  206 

V.  Smitla  (28  Cal.  102)  583,  678 

Stever  v.  Lamoure  (Hill  &  D.  Supp.  352)   506 
Steves  V.  Oswego  &  Syracuse  R.  li.  Co. 

(18  N.  Y.  422)  534 

Stewart  v.  Cauty  (8  Mees.  &  W.  160)  317 

V.  Drake  (4  Halst.  139)  182 

V.  McGuin  (1  Cow.  99)  668 

V.  Noble  (1  Greene  [Iowa],  26)       202 
V.  Raymond  R.  R.  Co.  (7  Smedes 

&M.  568)  667 

V.  Rumball  (2  Vem.  509)  449 

V.  Sowles  (3  La.  Ann.  464)  335 

V.  State  of  Maryland  (20  Md.  97)    28 

St.  Helen's  Smelting  Co.  v.  Tipping  (11 

H.  L.  C.  642)  55 

Stickney  v.  Allen  (10  Gray,  352)  311,  542,  569 
Stiles  V.  Tilford  (10  Wend.  338)  424 

V.  White  (11  Mete.  356)  35,  658 

Still  V.  Hall  (20  Wend.  51)  436,  500 

Stillwell  V.  Staples  (19  N.  Y.  401)  284 

Stimpsonw.  The  Railroads  (1  Wallace,  Jr. 

164)  104,  t09,  110,  526,  673 

Stirling  v.  Garritee  (18  Md.  468)  542,  575 

St.  John  V.  Mayor,  &c.,  of  N.  Y.  (13  How. 

Pr.  527  ;  6  Duer,  315)  145 

V.  Palmer  (5  Hill,  599)  168 

St.  Louis,  Alton  &  R.  I.  R.  R.  Co.  v. 

Coultas  (33  111.  188)  485 

St.  Martin  v.  Desnoyer  (1  Minn.  156)    707,711 
St.  Paul,  City  of,  v.  Kuby  (8  Minn.  154)     534, 

707 
St.  Peter's  Church  v.  Beach  (26  Conn. 

355)  .  106,  615 

Stockbridge  v.  Crooker  (34  Me.  349)  242 

Stockdale  v.  Young  (3  Strobh.  501)  131 

Stocking  V.  Sage  (1  Conn.  519)  391 

Stoddard  V.  Mix  (14  Conn.  12)  316 

Stonard  v.  Dunkin  (2  Camp.  344)  570 

Stone y.  Codman  (15  Pick.  297)  91,  517 

V.  Hooker  (9  Cow.  154)  363 

V.  Varney  (7  Mete.  86)  630 

V.  Watson  (1  Ala.  Sel.  Cas.  236^       324 


PAGE 

Stoneseifer  v.  Shcble  (31  Mo.  243)  533 

Story  V.  Hammond  (4  Ohio,  376)  153 

V.  Livingston  (13  Peters,  359)  438 

V.  N.  Y.  &  Harlem  R.  R.  Co.  (6  N. 

Y.  [2  Seld.]  85)  76,416,  698 

V.  Robinson  (32  Cal.  205)  636 

Stoughton  V.  Lynch  (2  Johns.  Ch.  214)    440 

Stout  V.  Jackson  (2  Rand.  132)  181 

V.  Prall  (Coxe,  79)  229 

Stow  V.  Yarwood  (14  111.  424)  512 

Stowell  V.  Bennett  (34  Me.  422)  190 

V.  riagg  (11  Mass.  364)  672 

Strang  v.  Holmes  (7  Cow.  224)  684 

V.  Whitehead  (12  Wend.  64)         649 

Strange  v.  Powell  (15  Ala.  452)  671 

Strasburger  v.  W.  Union  Tel.  Co.  (N.  Y. 

Superior  Ct.  April,  1867)  410,  468 

Strawbridge  v.  Turner  (9  La.  213)  97 

Strawn  v.  Cogswell  (28  111.  457)  79 

Streeper  v.  Williams  (48  Penn.  450)  478 
Street  v.  Augusta  Ins.  &  Banking  Co. 

(12  Rich.  L.  [S.  C]  13)  279 

V.  Blay  (2  Bam.  &  Ad.  456)  319,509, 

510,  636 

V.  Rigby  (6  Ves.  815)  464 

Streeter  v.  Rush  (25  Cal.  67)  467 

Streett  v.  Laumier  (34  Mo.  469)  615 

Strong  V.  Blake  (46  Barb.  227)  684 

V.  Kean  (13  Irish  Law,  93)    44,  214, 

706 

V.  Shumway  (Chipm.  110)  181 

Struthers  v.  Clark  (30  Penn.  210)  318 

Strutt  V.  Farlar  (16  Mees.  &  W.  249)     220, 

416 
Stuart  V.  Binsse  (10  Bosw.  436)  435 

V.  Wilkins  (1  Dougl.  18)        222,  224 
Stucke  V.  Milwaukee  &  Miss.  R.  R.  Co.  (9 

Wis.  202)  534 

Sturgis  V.  Knapp  (33  Vt.  486)  453 

Sturlyn  v.  Albany  (Cro.  Eliz.  67)  232 

Stuyvesant  v.  Dunham  (9  Johns.  61)  143 
Suifolk  Co.  V.  Hayden  (3  WaUace,  315)  674 
Sullivan  v.  Montague  (Dougl.  106)  119 

?;.  Tuck(lMd.  Ch.  Dec.  59)  553 

Sully  V.  Duranty  (33  L.  J.  [N.  S.]  Exeh. 

319)  64 

Sumner  v.  Williams  (4  Hall's  Am.  L.  J. 

129,  147)  181 

V.  Williams  (8  Mass.  162,  221)  177, 

178 
Sumter  v.  Lehie  (1  Treadw.  Const.  R. 

102)  130 

Sutton  V.  Clark  (6  Taunt.  29)  120 

v.Mandeville(lCr.C.  C.R.I 87)     528 

V.  Page  (4  Tex.  142)  180 

Suydam  v.  Allen  (20  Wend.  321)  384 

V.  Jenkins  (3  Sandf.  614)    298,  547, 

553,  555,  579,  580,  613,  714 

V.  Moore  (8  Barb.  358)  673 

Swails  V.  Butcher  (2  Ind.  84)  629 

Swamseot  Machine  Co.  v.  Partridge  (5 

Fost.  369)  429 

Swan  V.  Tappan  (5  Cush.  104)  678 

Swanson  v.  Cooke  (45  Barb.  574)  265 

Swarthout  v.  New  Jersey  Steamboat  Co. 

(46  Barb.  222)  677 

Sweem  v.  Steele  (5  Iowa,  352  ;  10  Iowa, 
374)  198,  223,  228,  484 


Ixii 


TABLE   OF   CASES. 


Sweet  V.  Bradley  (24  Barb.  549)         162,  330 
Swett  V.  Patrick  (3  Fairf.  9)     105,  181,  189, 

332 

Swift  V.  Barnes  (16  Pick.  194)  299,  579 

V.  Dickermau  (31   Conn.  285)  626 

V.  Harriman  (30  Vt.  607)  236 

V.  Williams  (2  Carter,  365)  236 

Swire  v.  Leach  (18  C.  B.  [N.  S.]  479, 

491)  557,569 

Symes  v.  Oliver  (13  Mich.  9)  552 

Symonds  v.  Page  (1   Cr.  &  J.  29)  135 


Taber  v.  Hutson  (5  Ind.  322)  530 

Taft  V.  Inhabitants  of  Montague  (14 

Mass.  282)  240 

V.  Wildman  (15  Ohio,  123)  219 

Taggard  v.  Curtenins  (15  Wend.  155)  503 
Tait  V.  Sherman  (10  Iowa,  60)  242 

Talbot  V.  Whipple  (7  Gray,  122)  147 

Talbott  V.  Bedford  (5  Hall's  Am.  Law 

Jour.  330)  181 

Talcott  V.  Marston  (3  Minn.  339)  458 

Tamvaco  v.  Simpson  (19  C.  B.  [N.  S.] 
453  ;  11  Jur.  [N.  S.]  926  ;  13  L.  T.R. 
[N.   S.]  160)  568 

Tanner  v.  Livingston  (12  Wend.  83)  188 
Tappenden  v.  Randall  (2  Bos.  &  P.  472)  430 
Tarleton  v.  McGawley  (Peake's  N.  P. 

Cas.  205)  87 

Tarpleyw.  Wilson  (33  Miss.  467)  433 

Tarpy  v.  Shepherd  (30  Cal.  180)  263 

Tate  V.  Booe  (9  Ind.  13)  195 

Tayloe  v.  Sandiford  (7  Wheat.  13)   463,476 
V.  Turner  (2  Cr.  C.  C.  R.  203)    295 
Taylor  v.  Ashton  (11  Mees.  &  W.  401)     99 
V.  Church  (8  N.  Y.  [4  Seld.]  452) 

529,  628 
V.  Collier  (26  Geo.  122)  396 

V.  Commonwealth  (3  Bibb,  356)   611 
V.  Dustin  (43  N.  H.  493)  677 

V.  Fleet  (4  Barb.  95)  656 

V.  Foster  (Cro.  Eliz.  807)  247 

V.  Henniker  (12  Adol.  &  E.  488)  47 
V.  Higgins  (3  East,  169)        353,  354, 
355,  360 
V.  Ketchum  (5  Rob.  N.  Y.  Supr. 

Ct.  507)  717 

V.  Maguire  (12  Mo.  313;  13  Mo. 

517)  72,  80 

V.  Mills  (Cowp.  525)  342 

V.  Monnot  (1  Abbott's  Pr.  R.  325  ; 

S.  C.  4  Duer,  116)  692 

V.  Morgan  (3  Watts,  333)  566 

V.  Neville  (cited  in  3  Atk.  383)    251 

V.  Read  (4  Paige,  561 )  292,  498 

V.  The  Governor,  &c.  (17  Ga.  521)  610 

Teagarden  v.  Hetfield  (11  Ind.  522)         678 

Teal  V.  Auty  (2  Brod.  &  B.  99)  51 

Tear  v.  Williams  (2  La.  Ann.  868)  334 

Tedd  V.  Douglas  (5  Jur.  [N.  SJ  1029)    710 

Teese  v.  Huntingdon  (23  How.  [U.  S.]  2)     673 

Telfer  v.  Northern  R.  R.  Co.  (1  Vroom 

[N.  J.],  188)  534,  647 

Tempest  v.  Kilner  (2  C.  B.  300;  3  C.  B. 
249)  295, 306 


PAOB 

Tempest  v.  Linley  (Clayton,  34)  590 

Templar  v.  McLachlan  (5  Bos.  &  P.  136) 

494,  509,  511 
Templemore  v.  Moore  (15  Irish  Law  [N. 

S.j,  14)  625 

Tenney  v.  State  Bank  of  Wisconsin  (20 

Wis.  152)  545 

Terre  Haute,  Alton  &  St.  L.  R.  R.  Co.  v. 

Vanatta  (21  111.  188)  707 

Terry  v.  Mayor,  &c.,  of  N.  Y.  (8  Bosw. 

504)  145,  147 

Terwilliger  v.  Knapp  (2  E.  D.  Smith,  86)  313 
V.  Wands  (17  N.  Y.  54)  627 

Tew  V.  Earl  of  Wiuterton  (3  Brown  Ch. 

R.  490)  482 

Thacher  v.  Dinsmore  (5  Mass.  299)  358 

Thame  v.  Boast  (12  Q.  B.  808)  44,  513 

Tharpe  v.  Bell  (cited  4  Dallas,  142)  129 

Thayer  v.  Brooks  (17  Ohio,  489)  155 

V.  Clemence  (22  Pick.  490)  189 

V.  Hedges  (23  Ind.  141)  263 

V.  Roberts  (44  Me.  247)  607 

V.  Wadsworth  (19  Pick.  349)  238 

Theobald  v.  Railway  Passengers'  Assur- 
ance Co.  (10  Exch.  45  ;  26  Eng.  L.  & 
E.  432  ;  18  Jur.  583)  288 

Thicknesse  v.  Lancaster  Canal  Co.  (4 

Mees.  &  W.  472)  668 

Thomas  v.  Allen  (1  Hill,  145)  343 

V.  Clarke  (2  Starkie,  450)  426 

V.  Dickinson  (12  N.  Y.  [2  Kern.] 

364  ;  23  Barb.  431)  206,  711 

V.  Dike  (11  Vt.  273)  237 

V.  Dunaway  (30  111.  373)  629 

V.  Harris  (1  Post.  &  F.  67)  529 

V.  Isett  (1  Greene  [Iowa],  470)       619 
V.  Watei-man  (7  Mete.  227)  418 

V.  Weed  (14  Johns.  255)  441 

V.  Winchester  (6  N.  Y.  [2  Seld.] 

397)  67 

V.  Womack  (13  Tex.  580)  710 

Thompson's  Ex'r  v.  Guthrie's  Adm'r  (9 

Leigh,  101)  199 

Thompson  v.  Alger  (12  Mctc.  428)  315 

V.  Bell  (37  Ala.  438)  199 

V.  Burgey  (36  Penn.  403)  333,  531 
V.  Crocker  (9  Pick.  59)  148 

V.  Gibson  (7  Mees.  &  W.  456)    155 
V.  Grand  Gulf  R.  R.  &  Bank- 
ing Co.  (3  How.  [Miss.] 
240)  667 

V.  Haislip  (14  Ark.  220)  688 

V.  Howes  (14  La.  Ann.  45)  291 
V.  Inhabitants  of  Bridgewater 

(7  Pick.  188)  535 

t;.  Jackson  (14  B.  Monr.  114)  76 
V.  Morrow  (5  Serg.  &  R.  289)  141 
V.  Pettitt  (10  Q.  B.  101)  620 

V.  Richards  (14  Mich.  172)  341 
V.  Riggs  (5  Wallace   [U.  S.], 

663)  261,  262 

V.  Robertson  (4  Johns.  27)  273 
V.  Ross  (5  Hurl.  &  N.  16)  633 

V.  Shattuck  (2  Mete.  615)  73,  103, 
213 
V.  Smith  (28  Cal.  527)  129 

V.  Wood    1  Hilt.  93)  389 

V.  Wood  (4  Q.  B.  493)  678 


TABLE    OF    CASES. 


Ixiii 


Thornborow  v.  Whiteacrc  (2  Ld.  Eaym. 

1164)  231 

Thorne  v.  Dc.-vs  (4  Johns.  84)  379 

Thornton  v.  Phxcc  511 

V.  Thompson  (4  Gratt.  121)         323 
V.  Wvnu  (12  Wheat.  183)    319,  506 
Thoronood  I'.  Brvan  (8  C.  B.  115)  535 

Thoroughgood  v.  Walker  (2  Jones  L.  15)  457, 

466 

Thorpe  v.  White  (13  Johns.  53)  237 

Thrall  v.  Lathrop  (30  Vt.  307)  545 

r.  Newell  (19  Vt.  202)  267 

Threlkcld's  Adni'r  v.  Fitzhueh's  Ex'r. 

(2  Lei-h,  451)  181 

Thurston  v.  Alstead  (6  Fost.  259)  663 

V.  Martin  (5  Mason,  497)      .528,  709 

Thurstoutr.  Grey  (2  Strange,  1056)  131 

Tiernan  v.  Andrews  (4  Wash.  C.  C.  E. 

564)  391 

u.  Hinman  (16  111.  400)  480 

Tim  V.  Culver  (3  Hill,  180)  524 

Tillev  V.  Hudson  River  R.  R.  Co.  (24  N. 

Y.'471  ;  29  N.  Y.  252)  647 

Tillotson  V.  Cheetham  (3  Johns.  56,  64)      521 

V.  Smith  (32  N.  H.  90)      45,  48,  147 

Tindall  v.  Bell  (11  Mees.  &  W.  228)  364 

Tingley  v.  Cutler  (7  Conn.  291)  479 

Tinsman  v.  Belvidere  Delaware  R.  R.  Co. 

(1  Dutch.  [N.  J.]  255;  2  Dutch.  [N.  J.] 

148)  67,  121,  151 

Titus  V.  Himrod  (39  Barb.  581)  505 

Tobey  v.  Barber  (5  Johns.  68)  358 

Tobin  V.  Shaw  (45  Me.  331,  348)  421 

Tod  V.  Baylor  (4  Leigh,  498)  140,  141 

Todd  V.  Jackson  (2  Dutch.  [N.  J.]  525)      150 

Tomlinson  v.  Day  (2  Brod.  &  B.  680)         234 

Toms  V.  Wilson  (32  L.  J.  [N.  S.]  Q.  B. 

382)  621,  641 

Tonawanda  R.  R.  Co.  v.  Hunger  (5  Denio, 

255)  539 

Tone  V.  Brace  (8  Paige,  597)  501 

Tong  V.  Matthews  (23  Mo.  437)  180 

Torre  v.  Summers  (2  Nott  &  McC.  267)  229 
Tourtellot  v.  Rosebrook  (11  Mete.  460)  535 
Toussaint  v.  Martinant  (2  T.  R.  100)  340,  343 
Towers  v.  Barrett  (1  T.  R.  133)  320,  334 

Towle  V.  Lovet  (6  Mass.  394)  566 

Townsend  v.  Phillips  (10  Johns.  98)  607 

Tracy  v.  Swartwout  (10  Peters,  81,  95)     515, 

522 
Train  v.  Gold  (5  Pick.  380)  347 

Trapnall  v.  McAffee  (3  Mete.  [Ky.]  34)  453 
Travis  v.  Barger  (24  Barb.  614)  707,  709 

V.  Dutlau  (20  Tex.  49)  83 

Traynor  v.  Johnson  (3  Head  [Tenn.],  44)  571 
Treanor  v.  Donahoe  (9  Cush.  228)  707 

Treeartin  v.  Ship  Rochambeau  (16  Month- 
ly Law  Rep.  [N.  S.)  564]  266 
Trelawnev  v.  Colman  (2  Stark.  191)  693 
Tremain  v.  Cohoes  Co.  (2  Comst.  163)  149 
Trevor  v.  Wood  (41  Barb.  255)  414 
Trice  v.  Turrentine  (13  Ired.  L.  212)  484 
Trigg  V.  Northcut  (Lit.  Sel.  Cas.  414)  114 
Tripp  V.  Bishop  (56  Penn.  424)  204 
Triston  v.  Barrington  (16  Mees.  &  W.  61)  513 
Trotter  v.  Grant  (2  Wend.  413)  432 
V.  McCall  (26  Miss.  410)  571 
Trout  V.  Kennedy  (47  Penn.  387)                311 


PAGE 

Troutman  v.  Gowing  (16  Iowa,  415)  263 

Trow  V.  Vermont  Central  R.  R.  Co.  (24 

Vt.  487)  534 

Trowbridge  v.  Holcomb  (4  Ohio  St.  38)      268 
Troy  V.  Clarke  (30  Cal.  419)  9 

Troy  &  Boston  R.  R.  Co.  v.  Lee  (13  Barb. 

169)  663,  664 

Troy  &  Boston  R.  R.  Co.  v.  Northern 

Turnpike  (46  Barb.  100)  664 

Trov,  Town  of,  v.  Cheshire  R.  R.  Co.  3) 

Fost.  83)  114,677 

Trull  V.  Granger  (8  N.  Y.  [4  Seld.]  115)   177, 

208 
Truman  v.  Taylor  (4  Iowa,  424)  627 

Trustees  of  Hamilton  College  v.  Stewart 

(1  N.  Y.  [1   Comst.]  581)  233 

Tubbs  z;.  Van  Kleek  (12  111.  446)  422 

Tuckers.  Chaplin  (2  Car.  &  K.  730)  647 

i;.  Ives  (6  Cow.  193)  436 

V.  Newman  (11  Adol.  &  El.  40)       151 

V.  Wright  (3  Bing.  601  ;  S.  C.  11 

Moore,  500)  546 

Tuckwell  V.  Lambert  (5  Cush.  23)  318 

Tudor  V.  Lewis  (3  Met.  [Ky.]  378)  588 

Tufts  V.  Adams  (8  Pick.  547)         52,  179,  191 

V.  City   of    Charlestown    (4   Gray, 

537)  668 

TulHdge  V.  Wade  (3  Wils.  18)  519,  634 

Tunison  v.  Cramer  (South.  498)  482 

Turner  v.  Foxall  (3  Cr.  C.  C.  R.  324)         637 

V.  Hawkins  (1  Bos.  &  P.  476)  37 

V.  N.  B.  &  M.  R.  R.  Co.  (34  Cal. 

594)  407,  408 

V.  Sheffield  &  Rotherham  Railway 

Co.  (10  Mees.  &W.  425)  668 

V.  Tuolumne  Co.  Water  Co.  (25 

Cal.  397)  711 

Tuttle  V.  Brown  (4  Gray,  457)  320 

V.  Mayo  (7  Johns.  132)  237 

V.  Tompkins  (2  Wend.  407)  503 

Twambly  v.  Henly  (4  Mass.  441)  168 

Tye  V.  Gwynne  (2  Camp.  346)  493 

Tyler  V.  ^tna  Fire  Ins.  Co.  (12  Wend. 

507)  287,  490 

Tyrer  v.  King  (2  Car.  &  K.  149)  197 


U. 


Ullman  v.  Barnard  (7  Gray,  554)  558 

Underbill  v.  Taylor  (2  Barb.  348)  628 

Underwood  v.  North  Wayne  Scythe  Co. 

(38  Me.  75)  147 

V.  Parks  (Strange,  1200)  627 

United  States  r.  Addison  (6  Wallace,  291)  390, 

454 
y.  Arnold  (1  Gall.  348,360; 

9  Cranch,  104)  482 

V.  Brig  Union  (4    Cranch, 

216)  683 

V.  Buchanan  (8  How.  83)  488 
V.  Hodge  (6  How.  279)  705 

u.  McDaniel  (7  Peters,  1)  685 
V.  McDowell  (4  Cranch,  316)  683 
V.  Morgan  (11  How.  154)  609 
V.  Robeson  (9  Pet.  325)  488 

V.  Williams    (4    McLean, 

567)  675 


Ixiv 


TABLE   OF   CASES. 


United  States   Tel.   Co.  v.  Wenger   (55 

Penn.  St.  262)  414 

Upclegrove  v.  Zimmerman  (13  Penn.  619)  628 
Upham  V.  Smith  (7  Mass.  265)  476 

Upton  V.  South  Heading  Branch  Railroad 

Co.  (8  Cush.  600)  663 

V.  Vail  (6  Johns.  182)  27 

Usher  v.  Noble  (12  East,  639)  283 

Utterson  v.  Vernon  (3  T.  R,  539,  547)        135 


Valpy  V.  Oakeley  (16  Q.  B.  941)  291,  421 

Van  Alen  v.  Rogers  (1  Johns.  Cas.  281)     128 
Van  Allen  v.  Illinois  Central  R.  R.  Co. 

(7  Bosw.  515)  291 

Van  Benschooten  v.  Lawson  (6  Johns. 

Ch.  R.  313)  439 

Van  Beuren  v.  Van  Gaasbeck  (4  Cow. 

496)  436 

Van  Buren  v.  Digges  (11  How.  461)  507 

Vance  v.  Forster  (1  Irish  Circuit  Cas.  51 ; 

3  Stephens'  N.  P.  2084)  285 

V.  Toume  (13  La.  225)  307, 

552 
Vandenburgh  v.  Truax  (4  Denio,  464)  67,  86, 

95 
Vanderslice  v.  Newton  (4  Comst.  130)  680 
Van  Deusen  r.  Blum  (18  Pick.  229)  242 

V.  Young   (29  Barb.  9;    29 

N.  Y.  9  158,  320,  625 

Van  Dieman's  Land  Co.  v.  Cockerell  (1 

C.  B.  [N.  S.]  732)  295 

Van  Dine  V.  Burpee  (13  Met.  288)  695 

Van  Duzor  v.  Linderman  (10  Johns.  106)  104 
Van  Epps  v.  Han-ison  (5  Hill,  63)     226,  498, 

657 
Vanhome's  Lessee  v.  Dorrance  (2  Dall. 

304)  667 

Van  Husan  v.  Kanouse  (13  Mich.  303)       262 
Van  Rensselaer  v.  Bradley  (3  Denio,  135)  209 
V.  Gallup  (5  Denio,  454)    209 
V.  Jewett  (5  Denio,  136; 
2  N.  Y.   [2  Comst.] 
135)  437 

V.  Jones  (2  Barb.  643)      209, 
435,  437 
V.  Radcliff  (10  Wend. 

639)  143 

Van  Rensselaer's  Ex'rs  v.  Platner's  Adm'r 

(1  Johns.  276)  437 

Van  Schaick  v.  Trotter  (6  Cow.  599)  689 

Van  Slyck  v.  Hogeboom  (6  Johns.  270)      597 
Van   Steenburgh  v.  Tobias   (17   Wend. 

562)  670 

Van  Tine  v.  The  Lake  (2  Wall.  Jr.  52)     536, 

537 
Van  Winkle  v.  U.  S.  Mail  Steamship  Co. 

(37  Barb.  122)  395 

Van  Zandt  v.  The  Mayor,  &c.,  of  N.  Y. 

(8  Bosw.  375)  163 

Vaspor  V.  Edwards  (12  Mod.  660)  156 

Vaughan  v.  Webster  (5  Harring.  [Del.] 

256)  545 

V.  Wood  (1  Mylne  &  K.  403)      548 

Veazie  v.  Somerby  (5  Allen,  280)  579 

Vedder  v.  Hildreth  (2  Wis.  427)  65 


PAGE 

Vedder  v.  Vedder  (1  Denio,  257)  146,  155 
Veghte  V.  Hoagland  (5  Dutch.   [N.  J.] 

125)  247 

Venus,  The  (5  Wheat.  127)  108 

Verdier  v.  Trowell  (6  Rich.  L.  166)  320 

Verges  v.  Giboney  (38  Mo.  458)  262 

Vernon's  Case  (4  Coke,  3)  183 

Verry  v.  Watkins  (7  Car.  &  P.  308)  633,  636 
Vicars  v.  Wilcocks  (8  East,  1)  64 

Vicksburg  &  Jackson  R.  R.  Co.  v.  Patton 

(31   Miss.  156,  158)  154,  532,  534 

Vilas  V.  Barker  (20  Vt.  003)  599 

Villepigue  v.  Shular  (3  Strobh.  462)  633 

Villers  v.  Beamont  (2  Dy.  146  a)  183 

Vincennes,  City  of,  v.  Richards  (23  Ind. 

381)  120 

Vincent  v.  Dixon  (5  Ind.  270)  630 

Vivian  v.  Champion  (2  Ld.  Raym.  1125)  210 
Von  Hemert  v.  Porter  (11  Met.  210)  439,  440 
Voorhees  v.  Earl  (2  Hill,  288)     319,  322,  325, 

655 

V.  The  Presbyterian  Church  of 

Amsterdam  (8  Barb.  135; 

17  Barb.  103)  143 

Vosburgh  v.  Welch  (11  Johns.  175)  640 

Vredenburgh  v.  Snyder  (6  Iowa,  39)  425 


W. 


Waddington  v.  Oliver  (5  Bos.  &  P.  61 )       237 
Wade  V.  Comstock  (11  Ohio,  71)  174,  182 

Wadleigh  v.  Town  of  Sutton  (6  N.  H.  15)  242 
Wadsworth  v.  Treat  (43  Me.  163)  626 

Wager  v.  Troy  Union  R.  R.  Co.  (25  N. 

Y.  526)  663 

Waggoner  v.  Jermaine  (7  Hill,  357  ;   3 

Denio,  306)  123,  156,  683 

Wagner  v.  Corkhill  (40  Barb.  175)  72 

V.  Holbrunner  (7  Gill  296)  628 

Waite  V.  Dolby  (8  Humph.  406)  576 

V.  Gilbert  (10  Cush.  177)  402 

Wakely  v.  Hart  (6  Binn.  316,  319)    "  688 

Walden  v.  Sherburne  (15  Johns.  409)  433 

Waldo  V.  Forbes  (1  Mass.  10)  451 

V.  Long  (7  Johns.  173)  191 

Waldron  v.  Berry  (22  Me.  486)  52 

V.  McCarty  (3  Johns.  471)  168 

V.  Rensselaer  &  S.  R.  R.  Co.  (8 

Barb.  390)  673 

Walker  and  Nevil's  Case  (1  Leon.  56)         139 
Walker  v.  Borland  (21  Mo.  289)  528,  552,  615 
V.  Broadhurst  (22  Eng.  L.  &  E. 

587;  S.  C.  8  Exch.  889)  346 

V.  Constable  (1  Bos.  &  P.  .307)       275, 

430 
V.  Dixon  (2  Stark.  281)  237 

V.  Ellis  (1  Sneed,  515)  65 

r.  Hatton  (10  Mees.  &  W.  249)       371 
V.  Hitchcock  (19  Vt.  634)  130 

V.  Johnson  (8  Eng.  [Ark.]  522)       182 
V.  McCoy  (34  Ala.  659)  504 

V.  Meek  (12  Smedes  &  M.  495)       270 
V.  Milner  (4  Fost.  &  F.  745)  329 

y.  Moore  (10  Barn.  &  C.  416)  196 

V.  Schuyler  (10  Wend.  480)  140 

V.  Sedgwick  (8  Cal.  398)  499 

V.  Smith  (4  Dall.  389)  378 


TABLE    OF    CASES. 


Ixv 


Walker  v.  Smith  (1   Wash.  C  C.  R.  152)   26, 

520 
V.  Sway  zee   (3   Abbott's  Pr.  R. 

13G)  212 

V.  Wihiiarth  (37  Vt.  289)  588 

V.  Wilson  (8  Bosw.  586)  529 

Wall  V.  Hill  (7  Dana,  172)  141 

Wallace  v.  Clark  (7  Blackf.  298)  583 

V.  Mayor,  &c.,  of  N.  Y-   (2  Hilt. 

440)  532 

V.  Tellfair  (cited  1  Esp.  76)  379 

V.  Wren  (32  111.  146)  324 

Wallis  V.  Cook  (10  Mass.  510)  400 

Wall    Street,    Matter   of  widening    (17 

Barb.  617)  664 

Walls  V.  Johnson  (16  Ind.  374)  579 

Wallsworth  v.  Mead  (9  Johns.  367)  347 

Walrath  v.  Redrield  (11   Barb.  368;    18 

N.  Y.  457)  146,  515 

Walsh  V.  Adams  (3  Denio,  125)  563 

Walter  v.  Post  (6  Duer,  363  ;  4  Abbott's 

Pr.  R.  382)  144 

Walther  v.  Wetmore  (1  E.  D.  Smith,  7)  559 
Walton  V.  Cody  (1  Wis.  420)  328 

Walworth  v.  Pool  (4  Eng.  [Ark.]  394)       231, 

405 

Wambaugh  v.  Bimer  (25  Ind.  368)  455 

Ward  V.  Ames  (9  Johns.  138)  231 

V.  Benson  (31  How.  Pr.  411)  421 

V.   Brig    Fashion    (1     Newberry's 

Adm.  8)  537 

V.  Haws  (5  Minn.  440)       115,  516,  677 
u.  Henry  (15  Wis.  239)  556 

V.  Reynolds  (32  Ala.  384)  320 

i;.  Smith  (11  Price,  19)         93,677,679 
V.  Vanderbilt   (N.   Y.   Transcript, 

Aug.  14th,  1867)  407 

V.  Weeks  (7  Bing.  211)  90 

V.  Wiman  (17  Wend.  193)  656 

Wardon  v.  Greer  (6  Watts,  424)  395 

Wardens,  &c.,  of  the  Mystery  of  Grocers 

V.  Donne  (3  Scott,  356)  120 

Warder  v.  Arell  (2  Wash.  [Va.]  282)  261 

Wardrobe  v.  California  Stage  Co.  (7  Cal. 

118)  532 

Ware  v.  Cartledge  (24  Ala.  622)  634 

V.  Weathnall  (2  McCord,  413)  180 

Waring  i-.  Mason  (18  Wend.  425)  328 

Warner  v.  Bacon  (8  Gray,  397)     83,  112,  677 

V.  Matthews  (18  111.  83)  580 

Wamibold  v.  Schlicting  (16  Iowa,  243)      263 

Warren  v.  Cole  (15  Mich.  265)  615 

V.  Doohttle  (5  Cow.  678)  671 

V.  Wheeler  (21  Me.  484)  201 

Wai-wick  V.  Foulkes  (12  Mees.  &  W.  507)  650 

Washington  Bank  v.  Brown  (2  Met.  293)  130 

Washington  &  N.  0.  Tel.  Co.  v.  Hobson 

(15  Gratt.  122)  409 

Waterer  v.  Freeman  (Hobart,  266  a)  43 

Waterman  v.  Frank  (21  Mo.  108)  606 

Waters  v.  Bristol  (26  Conn.  398)  707 

V.  The  Monarch  Life  &  Fire  Ins. 

Co.  (34  Eng.  L.  &  E.  116)       284 
V.  Towers  (20  Eng.  L.  &  E.  410; 

8  Exch.  401 )  73,  235 

Watkins  v.  Morgan  (6  Car.  &  P.  661)  443 
Watkinsonu.Laughton  (8  Johns.  213)  397,442 
Watkyns  v.  Watkyns  (2  Atk.  97)  449 


Watson  V.  Ambergate,  N.  &  B.  Railway 

(15Jur.  448)  85 

V.  Christie  (2  B.  &  P.  224)  682 

V.  Fuller  (6  Johns.  283)  445 

V.  Hamilton  (6  Rich.  L.  75)  53 

V.  McLean  (1  Ellis,  B.  &  E.  75)     542 
V.  Pittsburg  &   Connellsville  R. 

R.  Co.  (37  Penn.  469)  663 

V.  Watson  (20  Law  J.  R.  [N.  S.] 
C.  P.  25;  1  Eng.  L.  &  E. 
371  ;  10  C.  B.  3)  139 

Watt  V.  Mitchell  ( 1   Cas.  in  Ct.  of  Ses. 

2d  S.  1157)  309 

V.  Potter  (2  Mason,  77)  549 

V.  Riddle  (8  Watts,  545)  271 

Watts's  Ex'rs  v.  Sheppard  (2  Ala.  425)      477 

Watts  V.  Eraser  (7  Car.  &  P.  369)  637 

V.  Garcia  (40  Barb.  656)  434 

Wayman  v.  Cochrane  (35  111.  152)  458 

V.  Crozier  (35  111.  156)  458 

Weathers  v.  Mudd  (12  B.  Monr.  112)  688 

Weaver  v.  Bachert  (2  Barr,  80)  422 

v.  Darby  (42  Barb.  411)  581 

V.Page  (6  Cal.  681)  707 

Webb  V.  Alexander  (7  Wend.  281)  168 

V.  Pond  (19  Wend.  423)  350 

V.  Portland    Manuf    Co.  (3  Sum. 

192)  26 

Webber  v.  Eastern  R.  R.  Co.   (2  Mete. 

147)  668 

Webster  v.  Detastet  (7  T.  R.  157)  379 

V.  Quimby  (8  N.  H.  382)  611 

Weddle  v.  Stone  (12  Ind.  625)  221 

Weeks  v.  Holmes  (12  Cush.  215)  221 

Weiting  v.  Nissley  (13  Penn.  654)  187 

Welch  V.  Lawson  (32  Miss.  170)  207 

V.  Northeastern  R.  R.  Co.  (12  Rich. 

L.  [S.  C]  290)  105 

Weld  V.  Bartlett  (10  Mass.  470,  473)  517,  601 

Weldon  v.  Buck  (4  Johns.  144)  274,  275 

Weller  v.  Baker  (2  Wils.  414)  45 

Wells  V.  Abernethy  (5  Conn.  222)  300 

V.  Padgett  (8  Barb.  323)     421,  422,  634 

V.  Pickman  (7  T.  R.  174,  177)  607 

V.  Sanger  (21  Mo.  354)  707 

V.  Watling  (2  W.  Bl.  1233)  46 

Wellsville  v.  Geisse  (3  Ohio,  333)  506 

Welsh  V.  Anthony  (16  Penn.  254)  671 

Wemple  v.  Stewart  (22  Barb.  154)  311 

Wendell  v.  Wash.   &  Warren  Bank    (5 

Cow.  161)  668 

West  V.  Anderson  (9  Conn.  107)  654 

V.  Chamberlin  (8  Pick.  336)  362 

V.  Cutting  (19  Vt.  536)  319 

V.  Forrest  (22  Mo.  344)  648 

z;.  Pritchard  (19'Conn.  212)  300 

V.  Rice  (9  Mete.  564)  589,  602 

V.  Walker  (2  Swan,  32)  628 

V.  Wentworth  (3  Cow.  82)  296,  548 

Westchester  &  Phila.  R.  R.  Co.  v.  Miles 

(55  Penn.  St.  209)  407 

Westcott  V.  Nims  (4  Cush.  215)  3^ 

Westerman  v.  Means  (12  Penn.  97)  4W 

Western  Penn.  R.   R.    Co.  v.   Hill   (56 

Penn.  460)  664 

Western  R.  R.  Co.  v.  Babcock  (6  Mete. 

.346)  668 

Western  v.  Sharp  (14  B.  Monr.  177)  243,  244 


Ixvi 


TABLE    OF    CASES. 


Western    Union   Tel.    Co.   v.   Carew  (7 

Am.  Law  Keg.  [N.  S.]  18)  411 

Westervelt  v.  Smith  (2  Duer,  449)  341 

Westlake  v.  Degraw  (25  Wend.  669)  501 

Weston  V.  Downes  (1  Dougl.  23)  334 

V.   G.   T.  llailway  Co.  (54   Me. 

376)  402 

Wetherbee  v.  Bennett  (2  Allen,  428)  190 

Weymouth  v.  Chicago  &  N.  W.  R.  R. 

Co.  (17  Wise.  550)  552 

Whalen  v.  Layman  (2  Blackf.  194)  422 

Whalou  V.  Aklrich  (8  Minn.  346)  402 

Wheatley  v.  Thorn  (23  Miss.  62)  639 

Wheeler  v.  Brant  (23  Barb.  324)  670 

V.  Pettes  (21  Vt.  398)  599 

V.  Sohier  (3  Cash.  219)  185 

V.  The  Rochester  &  Syracuse  R. 

R.  Co.  (12  Barb.  227)  664 

Wheelock  v.  Wlieelwright  (5  Mass.  104)      568 
Wheelwright  v.  Beers  (2  Hall,  382,  391)  398, 

426 
V.  Depeyster  (1  Johns.  471)  570 
Whetstone  v.  Colley  (36  111.  328)  263 

Whipple   V.    Cumberland  Manufacturing 

Co.  (2  Story,  661 )     45, 107,  708 

V.  Walpole  (10  N.  H.  130)  522 

Whisler  v.  Bragg  (31  Mo.  124)  267 

Whitaker  v.  Harrold  (12  Jur.  395)  20 

V,   Sandifer    (1   Duvall    [Ky.], 

261)  389 

V.  Sumner  (9  Pick.  308)  588 

Whitbeck  v.  N.  Y.  Central  R.  R.  Co.  (36 

Barb.  644)  146,  560,  625 

V.  Skinner  (7  Hill,  53)         498,  505 
White  V.  Camijbell  (13  Gratt.  573)  422 

V.  Chapman  (1  Stark.  113)  511 

V.  Clack  (2  Swan,  230)  135 

V.  Ding-ley  (4  Mass.  433)  476 

V.  Fitchburg  R.  R.  Co.  (4  Cush. 

440)  664 

r.  Fratt  (13  Cal.  521)  341 

V.  French  (15  Gray,  339)  454 

V.  Griffin  (4  Jones  L.  139)  44,  48 

V.  Jones (5  Esp.  160)  593 

V.  Kearney  (2  La.  Ann.  639)  313 

V.  Madison  (26  N.  Y.  117)         331,  392 
V.  Moseley  (8  Pick.  356)  86,  213 

V.  Moses  (21  Cal.  34)  137 

V.  Nellis  (31  N.  Y.  405)  633 

V.  Oliver  (36  Me.  92)  242 

V.  Salisbury  (33  Mo.  150)  291 

r.  Sealey  (1  Dougl.  49)  482 

V.  South  Shore  R.  R.  Co.  (6  Cush. 

412)  663 

V.  Suttle  (1  Swan,  169)  145 

V.  The  Charlotte  &  So.  Car.  R.  R. 

Co.  (6  Rich.  47)  664 

V.  Tompkins  (52  Penn.  363)      268,  291 
V.  Webb  (15  Conn.  302)  558 

V.  Whitney  (3  Mete.  81,  89)  178 

V.  Wyley  (17  Ala.  167)  642 

Whitehall  v.  Squire  (Carthew,  103)  640 

Whitehead  v.  Ducker  (11  Smedes  &  M. 

98)  53 

Whitehouse   v.   Atkinson  (3   Car.   &   P. 

344)  545,  547 

Whitesell  v.  Crane  (8  Watts  &  S.  369)        692 
Whiteside  v.  Jennings  (19  Ala.  784)  205 


PA.OE 

Whitfield  v.  Whitfield  (40  Miss.  352)         551, 

552 
Whitford  v.  Panama  R.  R.  Co.  (23  N.  Y. 

465)  646 

Whiting  V.  Dewey  (15  Pick.  428)  188 

Whitman  v.  Boston  «&  Maine  R.  R.  Co. 

(3  Allen,  133  ;  7  Allen,  313)  668 

Whitmarsh  v.  Hall  (3  Denio,  375)  238 

Whitmorey.  Coats  (14  Mo.  9)  313 

V.  South  Boston  Iron  Co.  (2 

Allen,  52)  320 

Whitney  v.  Allaire  (4  Denio,  554  ;  1  N. 

Y.  [1  Comst.]  305)  49,  3.34,  502, 

655,  656 

V.  Clarendon  (18  Vt.  252)  118 

V.  Eager  (Crabbe's  C.  C.  R.  422)  638 

V.  Hitchcock  (4  Denio,  461)         526, 

534,  632,  651 

V.  Lewis  (21  Wend.  131)  495 

V.  Slayton  (40  Me.  224)  114 

Whitson  V.  Gray  (3  Head  [Tenn.],  441)     334 

Whittemore  v.  Cutter  (1   Gall.  429,  478)      49, 

108,  525,  674 
Whitten  v.  Fuller  (2  W.  BI.  902)  546 

Whitworth  v.  Hart  (22  Ala.  343)  429 

Wibert  v.  New  York  &  Erie  R.  R.  Co. 

(19  Barb.  36)  402,  403 

Wicker  v.  Hoppock  (6  Wallace,  94)  342 

Wickham  v.  Freeman  (12  Johns.  183)         143 
Witten  f.  Roberts  (1  Esp.  261)  267 

Wiggin  V.  Coffin  (3  Story,  1)        522,  528,  708 
Wilbeam  v.  Ashton  (1  Camp.  78)  460 

Wilbraham  v.  Snow  (2  Saund.  47)  572 

Wilbur  V.  Beecher  (2  Blatch.  132)  674 

Wilby  V.  Elston  (8  C.  B.  142)  627,  682 

Wilcox  V.  Ex'rs  of  Plummer  (4  Pet.  172, 

182)  113 

V.  Green  (23  Barb.  639)  707 

V.  Howland  (23  Pick.  167)  440 

V.  Leake  (11  La.  Ann.  178)  694 

Wild  V.  Holt  (9  Mees.  &  W.  672)  156 

Wild's  Adm'x  v.  Hudson   River   R.  R. 

Co.  (24  N.  Y.  430)  534 

Wilde  V.  Clarkson  (6  T.  R.  303)  453,  482 

Wildey  v.  Thornton  (2  East,  409)  481 

Wiley  V.  Howard  (15  Ind.  169)  183 

V.  Yale  (1  Mete.  553)  39 

Wilkes   V.    Hungerford   Market    Co.    (2 

Ring.  [N.  C]  281)  29 

V.  Lion  (2  Cow.  333)  131 

Wilkinson  v.  Coverdale  (1  Esp.  75)  379 

V.  Ferree  (24  Penu.  190)  329 

V.  Terry  (1  M.  &  R.  377)  47 

Willard  v.  Stone  (7  Cow.  22)  423 

V.  Twitchell  (1  N.  H.  177)  189 

Willetr.  Lassalle  (19  Abbott's  Pr.  272)      591 

Willetsw.  Burgess  (.34  111.  494)  190 

Willetts  V.  Buffiilo  &  Rochester  R.  R.  Co. 

(14  Barb.  585)  538,648 

Willey  V.  Fredericks  (10  Gray,  357)  98 

Williams's  Case  (5  Coke,  72)  29 

Williams  v.  Anderson  (9  Minn.  50)     389,  390 

V.  Archer  (5  C.  B.  318)         294,  577 

V.  Barton  (13  La.  404)  65 

V.  Bryant  (4  Ala.  [N.  S.]  44)        627 

V.  Crum  (27  Ala.  468)  567 

V.  Currie  (1  C.  B.  841)  520 

y.  Dakin  (22  Wend.  201)  481 


TABLE   OF    CASES. 


Ixvii 


Williams  v.  Field  (MS.  Rep.  S.  C.  New 

York)  205 

V.  Green  (14  Ark.  315)  449,  479,  481 
V.  Grc'cnwiule  (3  Dana,  432)  627 
V.  Ilolcomh  (1  N.  C.  L.  K.  365)  424 
I'.  Ilullaml  (10  Bing.  112)  37,  535 
V.  Jones  (1  Bush  [Ky.],  621)  313 
I?.  Jones  (12  Ind.  561)'  270 

V.  Littlefield  (12  Wend.  362)  375 
V.  London  Ass.  Co.  (1  Maul.  & 

S.  318,  323)  490 

V.  Mostyn  (4  Mees.  &  W.  145)  593 
V.  Nelson  (23  Pick.  141)  668 

V.  N.  Y.  Central  R.  R.  Co.  (16 

N.  Y.  97)  663 

V.  Oliphant  (3  Ind.  271)  208 

V.  Phelps  (16  Wise.  80)  564 

V.  Reynolds  (34  L.  J.  [N.  S.] 

Q.  B.  221;  11  Jur.  [N.  S.] 

973)  291 

V.  Scott  (30  Ala.  241)  453 

V.  Sherman  (7  Wend.  109)    238,430 

V.  Sims  (22  Ala.  512)  270 

V.  Storrs  (6  Johns.  Ch.  353)         434 

V.  Vanderbilt  (28  N.  Y.  217)        407 

I'.  Wetherbee  (2  Aiken,  329)         178 

V.  Williams  (11  Sm.  &  M.  393)    681 

y.  Woods  (16  Md.  220)  292 

Williamsoa  v.  Allison  (2  East,  446)   222,  224, 

328 
V.  Barrett  (13  How.  106)  536 

WiUings  V.  Consequa    (Peters  C.  C.  R. 

172,301)  442,446 

Willis  V.  Forrest  (2  Duer,  310)  639 

V.  Long  Island  R.  R.  Co.  (32  Barb. 

398)  534 

Willoughby  v.  Backhouse  (2  Barn.  &  C. 

821)  404 

V.  Comstock  (3  Hill,  389)         503 

Wills  V.  Wells  (8  Taunt.  264)  567 

Willson  V.  McEvoy  (25  Cal.  169)         346,  453 

V.  Willson  (5  Fost.  229)         162,  170, 

180,  186,  682 

Wilmans  v.  Bank  of  Illinois  (1  Gilman, 

667)  442 

Wilson  u.  Barnes  (13  B.  Monr.  330)  52 

V.  Berrvman  (5  Cal.  44)  711 

V.  Conine  (2  Johns.  280)  567 

u.  Daniel  (3  Dall.  401)  683 

V.  Dean  (10  Iowa,  432)  678 

V.  Drumrite  (24  Mo.  304)  180 

V.  The  Envoy  (1  Phila.  vol.  viii.  10 

[hot.  page  138J  )  537 

V.  Forbes  (2  Dev.  R.  [N.  C]  30)     181 
V.  George  (10  N.  H.  445)  269 

V.  Goit  (17  N.  Y.  442)  627 

V.  Graham  (14  Tex.  222)  483 

V.  Hicks  (40  Eng.  L.  &  E.  511  ; 

26  L.  J.  [Exch.]  242)  710 

V.  Hillhouse  (14  Iowa,  199)  608 

V.  Lancashire       and       Yorkshire 
R'way  Co.  (30  L.  J.  [N.  S.] 
C.  P.  232  ;  3  L.  T.  R.  [N.  S.] 
859 ;  9  C.  B.  [N.  S.]  632)    82,  402 
V.  Leonard     (5     Ir.    Jur.    O.    S. 

[Exch.]  96,  101)  634 

V.  Martin  (1  Denio,  602)  230 

V.  Matthews  (24  Barb.  295)  550 


FAOB 

Wilson  V.  Middleton  (2  Cal.  54)  530 

V.  Morgan  (I  Abbott's  Pr.  [N.  S.] 

174)  262 

V.  Newport    Dock  Co.   (1  L.  R. 

[Exch.]  177)  80 

V.  Nightingale  (8  Q.  B.  10.34)  622 

V.  Oatman  (2  Blackf.  223)  141 

V.  Robbins  (Wright  [Ohio],  40)      627 
V.  Sanford  (10  How.  99)  683 

V.  Spencer  (11  Leigh,  261)       182,  199 
V.  Stilwell  (9  Ohio,  467)  346 

V.  The  York,  Newcastle  &  B.  R. 
R.  Co.  (18  Eng.  L.  &  E. 
557)  402 

V.  Whitaker  (49  Penn.  114)       53,  223 
Wilton  V.  Webster  (7  Car.  &  P.  198)  638 

Winchester  v.  Patterson  (17  Mass.  62)  400 
Windham  v.  Rhame  (11  Rich.  L.  [S.  C] 

283)  529 

Wingate  v.  Mechanics'  Bank   (10  Barr, 

104)  377 

V.  Smith  (20  Me.  287)  562 

Winona  &  St.  Peter  R.  R.  Co.  v.  Waldron 

(11  Minn.  515)  662 

Winship  v.  Pitts  (3  Paige,  259)  158 

Winslow  V.  McCall  (32  Barb.  241)  168 

V.  Stokes  (3  Jones  L.  285)  118 

Winter  v.  Simonton  (2  Cranch  C.  C.  R. 

585)  600 

V.  Trimmer  (1  W.  Bl.  395)      482,  483 
Winterbottom  v.  The  Earl  of  Derby  (2  L. 

R.  [Exch.]  316)      152,  157 
V.  Wright  (10  Mees.  &  W. 

109)  27,  50 

Wintz  V.  Morrison  (17  Tex.  372)  325,  333 

Wise  V.  Metcalfe  (10  Barn.  &  C.  299)  214 

WiswaU  V.  Brinson  (10  Ired.  554)  373 

V.  McGown  (2  Barb.  270)  8 

Witherby  v.  Mann  (11  Johns.  518)  355,  358 
Witherow  v.  Witherow  (16  Ohio,  238)  237 
Withers  v.  Greene  (9  How.  214)  507 

Withy  V.  Mumford  (5  Cow.  137)  168 

Witsell  V.  Riggs  (14  Rich.  L.  [S.  C]  186)  516 
Woert  V.  Jenkins  (14  Johns.  352)  521 

Wolcott  V.  Hall  (6  Mass.  514)  630 

Wolfe  V.  Covington  &  Lexington  R.  R. 

Co.  (15  B.  Monr.  404)  664 

V.  Howard  Insurance  Co.  ( 1  Sandf 

124;  7  N.  Y.  [3  Seld.]  583)      253, 
284 
Wolfe,  Ex'r,  v.  Howes  (24  Barb.  174;  20 

N.  Y.  197)  235,  238 

Wolff  V.  Cohen  (8  Rich.  L.  144)         528,  639, 

707 

Wood  V.  Barker  (1  Ala.  Sel.  Cas.  311)        532 

V.  Bell  (6  Ellis  &  B.  355)  547 

V.  Braynard  (9  Pick.  322)  579 

V.  Bullens  (6  Allen,  516)  261 

V.  Hickok  (2  Wend.  501)  432 

u.  Leland  (1  Mete.  387)  368 

V.  Morewood  (3  Q.  B.  440)        563,  624 

V.  Robbins  (11  Mass.  504)  434,  438 

V.  Wade  (2  Stark.  167)  346 

V.  Watson  (53  Me.  300)  272 

Woodard  v.  Paine  (15  Johns.  493)       529,  530 

AVoodburn  v.  Cogdal  (39  Mo.  222)       579,  580 

Woodbury  v.  Jones  (44  N.  H.  206)  94 

V.  Luddy  (14  Allen,  1)  190 


Ixviii 


TABLE    OF    CASES. 


Woodger  v.  The  Gt.  Western  R'way  Co. 

(2  L.  R.  [C.  P.]  .'518)  400 

Woodham  i-.  Gclston  (1  Johns.  1.34)  608,  618 
WoodhuU  V.  Wagner  (1  Baldw.  296,  302)  265 
Woodruff  V.  Brown  (2  Harrison,  246)  140 
Woodson  V.  Scott  (20  Mo.  272)  707 

Woodstock  Bank  v.  Downer  (27  Vt.  540)  276 
Woodward  v.  Thacher  (21  Vt.  580)  323 

Woodworth  v.  Woodburn  (20  111.  184)  324 
Wooldridge  v.  Wilkins  (3  How.  [Miss.] 

360)  141 

Woolsey  v.  Crawford  (2  Camp.  445)  271 

Wordin  v.  Bemis  (32  Conn.  268)  400 

Workman  v.  Great  Northern  Railway  Co. 

(22  L.  J.  [N.  S.]  Q.  B.  279)  148 

Wormer  v.  Biggs  (2  Car.  &  ffir.  31)  156 

Worrall  v.  Jones  (7  Bing.  395)  _         691 

Worster  v.  Proprietors  of  Canal  Bridge 

(16  Pick.  541)  709 

Worswick,  Adm'r,  v.  Beswick  (10  Barn. 

&C.  676)  119 

Worthen  v.  Wilmot  (30  Vt.  555)        291,  292, 

310, 395 
Worthington  v.   Warrington    (8    C.   B. 

134)  196 

V.  Young  (8  Ohio,  401 )  137 

Worthy  v.  Jones  (11  Gray,  168)  270 

V.  Patterson  (20  Ala.  172)  320 

Wright  V.  Chamberlain  (7  Scott,  598)         326 

V.  Chandler  (4  Bibb,  422)  145 

V.  Cromford  Canal  Co.  (1  Q.  B. 

98)  665 

V.  Falkner  (1  Ala.  Sel.  Cas.  231)    389 
V.  Gray  (2  Bay,  464)  97 

V.  The  111.  &  Miss.  Tel.  Co.  (20 

Iowa,  195)  534 

Wrightup  V.  Chamberlain  (7  Scott,  598)  326 
Wylie  V.  Birch  (4  Q.  B.  566)  593 

V.  Smitherman  (8  Ired.  236)  516 

Wyllie  V.  Wilkes  (Dougl.  519)  450 

Wyman  v.  American  Powder  Co.  (8  Cush. 
168)  552 


Wyman  v.  Ballard  (12  Mass.  304) 
Wynn  v.  Brooke  (5  Rawle,  106) 


PAGE 

191 
363 


Yarborough  v.  Nettles  (7  La.  Ann.  116)  615 

Yater  v.  Mullen  (24  Ind.  277)  545 
Yates   V.  Dunster   (24  Eng.   Law  Jour. 

226)  211 
r.  Joyce  (11  Johns.  136)       26,608,614 

V.  Whyte  (4  Bing.  [N.  C]  272)  35 

Yea  V.  Lethbridge  (4  T.  R.  433)  602 

Yeates  v.  Stewart  (cited  4  Dallas,  142)  129 

Yoder  v.  Allen  (2  Bibb,  338)  307 
Yonge  V.  The  Pacific  M.  S.  S.  Co.  (1  Cal. 

353)  407 

Young  v.  Chandler  (13  B.  Monr.  252)  690 

V.  Courtney  (13  La.  Ann.  193)  32 

V.  Englehard  (1  How.  [Miss.]  19)  710 

V.  Harrison  (17  Ga.  30)  664 

V.  Hosmer  (11  Mass.  89)  601 

u.  Mertens  (27  Md.  115)  529 
V.  Spencer  (10  Barn.  &  C.  145)  46, 151 

V.  Stone  (4  Watts  &  S.  45)  195 

V.  Thompson  (2  Kansas,  83)  458 

V.  Willet  (8  Bosw.  486)  582 


Zabriskie  u.  Smith  (13  N.  Y.  [3  Kern.] 

322)  688 

Zack  V.  Penn.  R.  R.  Co.  (25  Penn.  394)      664 
Zehner  v.  Dale  (25  Ind.  433)  291 

Zeigler  v.  Braddy  (11   Rich.  L.  [S.  C] 

557)  529 

V.  Wells,  Fargo  &  Co.  (23  Cal. 

179)  563 

Zenobia,  The  (1  Abbott's  Adm.  80)  407 

Zerfing  v.  Mourer  (2  Greene  [Iowa],  520)    631 
Zink  V.  Langton  (2  Dougl.  749)  443,  690 


INTRODUCTIOIi. 


The  only  work  which  our  libraries  contain  on  the  subject  of 
the  Rule  or  Measure  of  Damages,  is  that  by  Saj'er,^^  published 
in  the  last  century  ;  it  covers,  however,  but  a  \ery  small  portion 
of  the  ground  now  embraced  by  this  branch  of  the  law,  and  is 
of  scarcely  any  value  to  the  American  student.f^  No  serious 
attempt  seems,  indeed,  to  have  been  made  to  reduce  the  rules 
of  damages  to  principle,  till  a  comparatively  recent  period. 
Lord  Kaims  says,  in  his  Principles  of  Equity,  "  In  the  English 
courts  of  common  law,  there  is  no  accurate  distinction  made 
between  damage  certain  and  uncertain.  Damages  are  taxed  by 
the  jury,  who  give  such  damages  as,  in  conscience,  they  think 
sufficient  to  make  up  the  loss,  without  regarding  any  precise 
rule."  t    This  was  written  less  than  a  century  ago.    In  an  action 

*  The  Law  of  Damages,  by  Joseph  Sayer,  under  the  Lands  Clauses  Act,  etc.     This  valu- 

Sergeant  at  Law,  London,  1770.  able  treatise  was  prepared,  of  course,  chiefly 

This  was  strictly  true  at  the  time  of  the  with  reference  to  use  in  England  ;  and  appears 

publication  of  the  first  edition  of  this  work,  to  be  a  very  faithful  compilation  of  the  Eng- 

in  1847.     Since  then,  more  attention  appears  lish  cases.     It  does  not,  however,  attempt  to 

to  have  been  paid  to  the   subject.     Mr.  Her-  present  fully  our  American  law  on  the  subject; 

bert  Broom's  highly  valuable  "Commentaries  the  learned  author  saying  very  frankly  in  his 

on  the  Common  Law,"  published  in  185.5,  con-  preface,   "I  have  only  resorted  to  American 

tain  two  lucid  and  comprehensive  chapters  on  decisions  where   none   of    our   own   were   in 

the  measure  of  damages  in  actions  of  contract  point."     Mr.  Mayne's  work  is  clear  and  well 

and  actions  of  tort;  and  in   1856,  an  entire  arranged,  and   will  undoubtedly  be  of  great 

English  "  Treatise  on  the  Law  of  Damages  "  utility  to  the  English  practitioner, 

was  published  by  John   D.   Mayne,  Estp,  of  t  The   second   volume  of  Mr.    Greenleaf's 

the  Inner  Temple.     This  latter  work  has  been  excellent  work  on  Evidence,  p.  209,  contains 

republished  in  this  country,  in  volume  92  of  a  chapter  on  Damages,  in  which  will  be  found 

the  Philadelphia  Law  Library,  and  tills  about  far  the  best  view  of  the  subject  that  has  ever 

three  hundred  pages  in  the  American  reprint,  yet  been  taken  ;  but  the  space  allotted  to  it 

The  scope  of  the  work  embraces  the  measure  forbade   anything   but   a   rapid   and   general 

of   damages,    the    mode   in   which    they   are  survey. 

assessed  and  reviewed,  the  practice  of  grant-  J  2d  edition,  1767,  p.  78,  in  notes, 
ing  new  trials,  the  law  of  set-oft',  compensation 

1  The  subject  has  lately  received  attention  as  an  incident  to  other  legal  topics.  In  Professor 
Parsons'  valuable  work  on  Contracts,  the  fifth  edition  of  which  was  published  in  1864  ;  in  Mr. 
Chief  Justice  Redfield's  elaborate  book  on  the  Law  of  Railways,  the  third  edition  of  which 
appeai-ed  in  1867  ;  and  in  Mr.  Francis  Hilliard's  treatise  on  Remedies  for  Torts,  published  the 
same  year,  a  portion  of  the  pages  are  devoted  to  the  law  of  damiiges,  as  far  as  relates  to  the 
subjects  under  discussion. 

1 


2  INTRODUCTION. 

for  an  escape,  tried  in  1776,  Lord  Cli.  J.  Wilraot  said,  "In  ac- 
tions on  the  case,  the  damages  are  totally  uncertain  and  at 
large." '''  It  is  almost  superfluous  to  say,  that  no  such  arl)itrary 
discretion  is  now  tolerated,  except  in  a  very  limited  class  of 
cases,  if,  indeed,  it  can  be  properl}'  said  to  exist  at  all. 

The  tribunals  of  justice,  both  in  England  and  America,  have 

for  some  time  assiduously  labored  to  reduce  this  branch  of 

[4]    our  science  to  fixed  rules;  and  in  the  present  condition  of 

our  jurisprudence  it  may  be  considered  surprising  that  the 

subject  has  not  received  more  attention  from  our  text-writers. 

The  amount  of  damages,  or,  in  other  words,  the  pecuniary 
compensation  awarded  by  tribunals  of  justice,  in  the  widest  ac- 
ceptation of  the  term  embraces  almost  the  whole  field  of  legal 
redress  ;  and  a  treatise  on  the  subject  of  the  rules  which  govern 
the  amount  of  damao-es,  if  considered  in  their  larg:est  and  most 
general  sense,  would  include  nearly  the  entire  philosophy  of  the 
law.  I  use  here  the  term  Law,  in  contradistinction  to  Equity. 
In  taking  a  broad  and  general  view  of  the  matter  of  damages, 
we  should  necessarily  be  led  to  consider  questions  which  lie  at 
the  very  basis  of  our  system  of  jurisprudence  :  to  what  extent 
compensation  ought  on  principle  to  be  carried  ;  whether  full  and 
complete  remuneration  should  be  provided  for  every  case  of 
civil  injury ;  or  whether,  as  now,  the  reparation  should  be  con- 
fined within  much  narrower  limits.  Again,  for  what  particular 
wrongs  reparation  should  be  provided.  Should  the  crime  of 
seduction  be  punished  by  a  civil  action  founded  on  a  fiction  of 
service  ?  Should  the  injured  husband  have  compensation  in  an 
action  for  criminal  conversation  ?  In  what  cases  should  redress 
be  furnished  for  slanderous  or  libelous  publications  ?  Ought  the 
malicious  refusal  to  fulfill  contracts  for  the  mere  payment  of 
money,  to  be  more  severely  punished  than  honest  incapacity  ? 
Should  there  be  any  reparation  for  a  frivolous  and  vexatious 
suit  beyond  the  costs,  or  should  further  redress,  as  now,  be  con- 
fined to  cases  of  malicious  prosecution  ?  Should  a  merely  fi\lse 
representation  as  to  the  credit  of  a  third  party,  be  allowed  to  be 
made  with  impunity,  or  should  it  be  necessary,  as  now,  to  show 
also  a  fraudulent  intent  ?  In  what  cases  should  provision  be 
made  for  the  counsel  fees  of  the  prevailing  party  ? 

These  and  similar  inquiries  would,  as  I  say,  embrace  almost 
the  whole  philosophy  of  legal  relief  But  I  have  by  no  means 
in  this  volume  intended  to  occupy  ground  so  extensive,  or  to 
discuss  questions  so  theoretical.  My  aim  has  been  more  limited ; 
and,  if  much  humbler,  at  least,  I  hope,  more  practically  useful. 

*  Ravenscroft  v.  Eyles,  2  Wils.  295. 


INTRODUCTION.  6 

My  purpose  has  been  to  examine  those  cases  only,  where  a 
wrong  having  been  done,  or,  in  technical  language,  a  right 
of  action  existing,  the  question  remains,  What  is  the  amount    [5] 
of  compensation  to  be  awarded  ?     In  other  words,  what  is 
the  rule  or  measure  of  damages  in  courts  of  law  ? 

In  doing  this,  my 'principal  purpose  has  been,  to  present  the 
law  as  it  is ;  while  at  the  same  time,  I  have  thought  it  my  duty 
to  exliibit  the  contradictions  and  discrepancies  which  exist  in 
this,  as  indeed  in  almost  every  part  of  our  jurisprudence ;  and 
which  must  exist,  so  long  as  those  changes  take  place  in  the 
administration  of  justice,  which  sometimes  furnish  a  theme  for 
well-grounded  censure,  but  more  frequently  exhibit  its  capacity 
of  self-adaptation  to  the  perpetual  fluctuations  of  our  social  and 
commercial  condition. 

In  preparing  the  work,  my  chief  embarrassment  has  arisen 
from  the  difficulty  of  making  a  proper  and  scientific  division  of 
the  subject.  The  whole  arrangement  of  our  Anglo-American 
jurisprudence,  as  originally  created  in  the  mother  country  and 
adopted  here,  the  primary  distinction  between  law  and  equity, 
and  the  subordinate  divisions  of  the  old  common  law  forms  of 
action,  are  so  purely  arbitrary  and  technical,  that  it  is  almost 
impossible  to  prepare  a  treatise  on  a  subject  so  extensive  as  that 
of  the  measure  of  damages,  which  shall  be  at  once  useful  and 
logically  arranged.  To  be  useful,  it  must,  to  a  very  considera- 
ble extent  at  all  events,  conform  to  those  arbitrary  divisions  and 
formuljB  which,  however  much  modified  both  in  England  and  in 
America  by  recent  legislation,  have  still  left  a  deep,  perhaps  a 
permanent  impress,  on  our  whole  jurisprudence,  although  they 
are  now  generally  recognized  to  be  equally  irreconcilable  with 
scientific  analysis  or  logical  order.  Conscious  of  the  difficulty, 
yet  seeing  no  mode  to  avoid  it  altogether,  I  have  endeavored, 
as  far  as  possible,  to  make  the  treatment  of  my  subject  corre- 
spond with  that  which  Blackstone  originally  adopted  in  his  ad- 
mirable Commentaries,  and  which  subsequent  writers  on  our  law 
have  .generally  followed. 

I  have  again  been  embarrassed  by  the  extent  of  the  subject. 
There  is  a  very  evident  distinction  between  the  cause  of  action 
and  the  measure  of  damages ;  in  other  words,  between  the  right 
of  recovery  and  the  amount  of  compensation ;  and  yet,  as  most 
actions  at  law  result  in  damages,  it  is  by  no  means  easy  in  all 
cases  to  define  what  properly  belongs  to  each.  "  The  rules  on 
the  subject  of  damages,"  says  one  of  the  great  French  civilians, 
with  his  usual  clearness,  "  regard  either  whether  they  are  due  at 
all,  or  of  what  they  consist.  The  first  question  is  one  of  law, 
which  depends  on  whether  the  pa|jty  charged  is  liable  or  not. 


4  INTRODUCTION. 

"  This  being   determined,   the    second    question   remains ; 
[6]    namely,  to  discriminate,  with  regard  to  the  damages  sus- 
tained, between  that  portion  which  is  to  be  made  good  and 
that  which  is  to  be  borne  by  the  sufferer."  * 

This  division,  very  clear  and  simple  in  theory,  it  will  not  al- 
ways be  found  easy  to  reduce  to  practice. 

Another  source  of  difficulty  has  arisen  from  the  fact  that 
some  parts  of  the  subject  have  been  already  treated  with  great 
fullness  and  ability.  Benecke's  and  Stevens'  works  on  Indemnity 
and  Average,  exhaust  that  branch  of  the  law  of  damages  which 
relates  to  insurance.  The  various  books  on  Set-off*  among  which 
is  Mr.  Barbour's  valuable  treatise,  and  the  late  Mr.  Graham's 
work  on  New  Trials,  equally  cover  the  whole  subject  so  ftir  as 
they  go.  And  where  I  have  found  the  ground  thus  occupied,  I 
have  contented  myself  with  a  very  general  survey. 

In  preparing  the  work,  I  have  endeavored,  as  far  as  possible, 
to  extract  some  general  and  reasonable  rule  from  cases  often 
conflicting  and  discrepant :  but  as  the  subject,  in  any  connected 
form,  is  almost  entirely  new,  I  have  thought  that  I  should  best 
serve  the  bar,  and  at  the  same  time  most  efficiently  contribute 
to  a  generalization  of  the  whole  matter,  by  giving  the  decisions 
sufficiently  at  large  to  show  the  principle  which  they  seek  to 
establish,  instead  of  contenting  myself  with  a  brief  reference. 
This  course  may  undoubtedly,  in  some  cases,  lead  to  prolixity  ;  but 
it  seems  to  me  to  be  attended  by  more  than  counter-balancing 
benefits.  Our  law  is  so  truly  to  be  found  in  our  reports,  that  it 
seems  to  me  always  better  to  give  the  very  words  of  judicial 
opinions,  than  to  attempt  to  put  them  in  different  language. 
In  regard  to  the  matter  of  damages,  too,  this  course  has  seemed 
to  me  particularly  expedient.  It  is  in  the  course  of  a  trial  that 
questions  of  this  class  generally  present  themselves ;  and 
[7]  while  I  have  endeavored  to  clear  the  way  to  a  correct  ap- 
preciation of  the  whole  subject,  my  especial  object  has 
been  to  make  a  work  which  should  be  practically  useful  at  nisi 
prius. 

I  have  found  another  reason  for  this  course,  in  the  unsettled 
state  of  this  branch  of  the  law.  The  contradictions  are  so 
numerous,  the  discrepancies  so  great,  and  the  subject,  in  a  con- 

*  Toutes  les  regies  de  la  matiere  des  dom-  des  dommages  et  interets,  e'tant  decidee,  e'en 

mages  et  interets  rcgardent,  ou  la  question  de  est  une  seconde,  de  s9avoir  en  quoi  ils  con- 

S9avoir  s'il  en  est  dd,  ou  celle  de  s^avoir  en  sistent,  c'est  a  dire,  de  discerner  dans  toute 

quoi  ils  consistent.     La  question  s'il  est  du  I'e'tendue  du  dommagc  qui  est  arrive  ce  qui 

des  dommages  et  interets,   est   toujours  une  doit  en  etre  impute  a  celui  qui  est  oblige'  de 

question   de   droit,  qui  depend  de  s9avoir  si  de'dommager,  et  ce  qui  ne  doit  pas  lui  etre 

celui  a  qui  on  les  impute  doit  en  etre  tenu impute.  —  Domat,  Loix  (Jiviles,  book  iii.   tit. 

Cette  premiere  question  de  s9avoir,  s'il  est  dd  5,  sec.  ii.  §  2. 


INTRODUCTION.  5 

nected  shape,  so  new,  that  I  have  hesitated  to  affirm  any  posi- 
tion without  citing  my  authority  at  large.  And  in  colhiting  the 
decisions,  I  have  found  so  much  variance  of  opinion  in  the 
numerous  tribunals  which  follow  the  course  of  the  common  law, 
that  it  is  with  great  difficulty,  in  many  cases,  that  I  have  been 
able  to  do  more  than  state  the  doubts  as  they  exist. 

I  have  endeavored  to  point  out  the  analogies  of  this  branch 
of  the  science  not  only  in  our  own  system,  but  by  going  back  to 
the  great  original  of  jurisprudence,  the  civil  law,  and  also  by 
reference  to  the  more  eminent  judicial  writers  of  France;  and  I 
can  only  wish  that  I  had  leisure  to  make  this  part  of  the  work 
more  full  and  complete.  I  have  had  constantly  in  my  mind  the 
precept  and  example  of  the  late  lamented  Story ; '''  but  no  one 
can  be  more  sensible  than  myself  of  the  immense  disparity  be- 
tween the  models  of  the  master  and  the  efforts  of  the  pupil. 

I  suggest  these  various  considerations  by  way  of  an  antici- 
pated excuse  for  the  many  errors  and  imperfections  which  I  am 
but  too  sensible  this  work  must  present ;  and  I  throw  myself 
upon  the  candid  and  indulgent  consideration  of  a  very 
learned  and  able  profession.-|-  I  do  not  at  all  flatter  myself  [8] 
with  the  hope  of  complete  success.  But  if  this  volume  tend 
in  any  degree  to  reduce  to  greater  certainty  this  department  of 
our  jurisprudence  —  to  stimulate  the  devotion,  or  to  abridge  the 
toil  of  those  who  painfully  devote  themselves  to  the  great 
science  of  justice  —  my  labor  will  be  abundantly  repaid. 

*  "  There  is  a  remarkable  difference,  in  tlie  plans  would  be  a  great  improvement  in  our 

manner  of  treating  juridical  subjects,  between  law  treatises,  and  would  afford  no  inconsider- 

the  foreign   and    the   English    jurists.     The  able  assistance  to  students  in  mastering  the 

former  almost  universally  discuss  every  sub-  higher  branches  of  their  profession." —  Story, 

ject  with  an  elaborate  theoretical  fullness  and  Pref.  to  Com.  on  Bailiiients. 
accuracy,  and  ascend  to  the  elementary  prin-        t  A  serious  difificulty  has  arisen  from  the 

ciples  of  each  jjarticular  branch  of  the  science,  fact  that  the  digests  of  the  reports  afford  but 

The  latter,  with  a  few  exceptions,  write  p-ac-  little  aid.     There  is,  I  believe,  in  no  one  of  them 

tical  treatises,  which  contain  little  more  than  any  such  head  as  "  Eule  or  Measure  of  Dam- 

a  collection  of  the  principles  laid  down  in  the  ages."     Wharton's  Pennsylvania  Digest  (ed. 

adjudged  cases,  with  scarcely  an  attempt  to  1 8.36 )  has  not  even  any  head  of  "  Damages  " ; 

illustrate  them  by  any  general  reasoning,  or  and  Harrison's,  the  most  complete  of  all,  has, 

even  to  follow  them  out  into  collateral  conse-  under  the  head  of  "  Damages,"  only  a  very  in- 

quences.     In  short,   these  treatises   are  little  considerable   number   of  cases.     It  has  been 

more  than  full  indexes  to  the  reports,  arranged  necessary,  therefore,  to  go  through  the  index 

under  the  appropriate  heads ;  and  the  mate-  to  each  volume  of  reports  separately ;  which, 

rials  are  often  tied  together  by  very  slender  considering  our  multorum  camdorum  onus,  is  not 

threads    of    connection.       They    are     better  a   holiday   task.     I  hope   our   reporters   and 

adapted  to  those  to  whom  the  science  is  fa-  digesters  may  hereafter  think  it  not  improper 

miliar,  than  to  instruct  others  in  its  elements,  to  reserve  one  head  for  the  Rule  or  Measure 

It  appears  to  me  that  the  union  of  these  two  of  Damages.^ 

1  The  difficulty  mentioned  by  the  author  no  longer  exists,  and  the  head  of  "  Damages  "  now 
has  its  fair  share  in  the  indices  and  digests  both  of  the  British  reports  and  our  own. 


CHAPTER    I. 

GENERAL   VIEW    OF    THE    SUBJECT. 

Distinction  between  Common  Law  and  Equity,  as  to  the  Relief  given.  —  Sir 
Hugh  Cairn's  Act.  —  Origin  of  Damages.  —  Different  Principles  on  which 
Different  Systems  of  Jurisprudence  act  in  awarding  Damages. — That  of 
the  English  and  American  Systems  is  Compensation.  —  Nature  and  Extent  of 
this  Compensation  generally.  —  Difficulties  arising  from  the  Forms  of  Action. 

The  subjects  of  legal  investigation,  when  practically  con- 
sidered, generally  resolve  themselves  into  three  great  heads  of 
inquiry :  the  right  of  the  parties  or  the  cause  of  action,  the 
forms  of  proceeding,  and  the  mode  of  relief  It  is  of  the  last 
only  of  these  three  divisions,  that  these  pages  are  intended  to 
treat ;  nor  are  they  intended  to  discuss  the  whole  topic  of  re- 
dress ;  on  the  contrary,  they  will  be  confined  to  a  single  head  of 
this  extensive  branch. 

The  student  of  English  jurisprudence  can  never  master  the 
subject  of  which  I  am  about  to  write,  nor,  indeed,  scarcely  any 
other  of  our  complicated  science,  until  he  has  completely  famil- 
iarized himself  with  the  fundamental  division  and  distinction 
between  Law  and  Equity.  There  is,  indeed,  nothing  more 
curious  in  legal  science,  hardly  anything  more  interesting  in  tiie 
histor}^  of  the  human  mind,  than  to  trace  the  processes  by  which 
the  twofold  fabric  of  English  jurisprudence  gradually  arose. 
How  the  CoiviMON  Law,  springing  from  the  ancient  usages  of 
the  Teutonic  stock,  at  once  identified  itself  with  the  interests  of 
the  great  feudal  proprietors  of  the  soil,  and  fashioned  their  real 
law ;  and  at  the  same  time  called  to  its  aid  the  Trial  by  Jury, 
and  thus  endeared  itself  to  the  popular  heart ;  while,  on  the 
other  hand,  the  Civil  Law,  under  the  name  of  Equity,  emerging 
from  the  great  wreck  of  the  Roman  Empire,  claimed  for  itself  a 
jurisdiction  which  the  cumbrous  and  artificial  jDrocesses  of  its 
rival  could  not  embrace,  and  by  the  mere  force  of  its  logical 
order,  scientific  analysis,  and  simple  reason,  has  succeeded  in 
obtainino"  a  hold  on  the  legal  organization  and  science  of  the 
world  which  bids  fair,  under  one  name  or  another,  to  end  m  an 
almost  complete  reestablishment  of  its  ancient  supremacy.     But 


8  GENERAL    VIEW    OF    THE    SUBJECT.  [cil.    I. 

these  are  considerations  of  too  general  a  nature  to  be  here 
pursued  further.  Contenting  myself  with  a  cordial  invitation 
to  the  student  not  to  neglect  these  old  mazes  of  our  legal  his- 
tory, I  confine  my  observations  to  matters  of  more  immediate 
practical  interest. 

The  relief  afforded  by  a  tribunal,  may  be  either  preventive  or 
remedial.  If  remedial,  it  may  again  be  either  specific,  or  it  may 
consist  in  the  mere  award  of  pecuniary  remuneration.  The  com- 
mon law,  as  it  exists  in  England,  and  as  it  was  introduced  into 
the  United  States,  is  generally  remedial  in  character,  and  its 
remedies  are  of  a  pecuniary  description.  It  has  few  preventive 
powers ;  it  can  rarely  compel  the  performance  of  contracts  spe- 
cifically ;  its  relief,  for  the  most  part,  consists  in  the  award  of 
pecuniary  damages.  Whether  it  punishes  wrongs,  or  remuner- 
ates for  breach  of  contract,  in  either  case  its  judgment  simply 
makes  compensation,  by  awarding  a  certain  amount  of  money 
by  way  of  damages  to  the  sufferer.^ 

The  rules  which   in  this   matter  govern  its  action,  i.  e.,  the 
amount  of  compensation  awarded  by  common  law  tribu- 
[10]  nals,  or  in  other  words  the  Measure  of  Damages,  will  be 
the  subject  of  this  treatise. 

A  mere  enumeration  of  the  forms  of  action  and  proceedings 
at  common  law,  when  we  consider  them  in  contradistinction  to 
equitable  relief,  is  sufficient  to  show  that  the  powers  of  the  for- 
mer tribunals  are  almost  solely  remedial,  and  confined,  with  few 
exceptions,  to  the  infliction  of  pecuniary  damages. 

Equity.  —  Equity  operates  by  injunction;  it  restrains  the 
aggressor  from  the  contemplated  violation  of  right;  it  gives 
specific  relief  by  decreeing  the  very  thing  to  be  done  which  was 
agreed  to  be  done ;  it  compels  the  unwilling  party  to  give  testi- 
mony ;  it  executes  trusts,  expounds  testaments,  and  adapts  its 
plastic  hand  with  ease  to  the  varied  wants  and  complaints  of 
man  in  a  state  of  society.  But,  as  a  general  rule,  it  refrains 
from  awarding  pecuniary  reparation  for  damage  sustained.!^ 

*   And  all   the   questions   growing  out  of  East  and  West  India  Docks  u.  Gattke,  15  Jur. 

these  subjects  are  investigated  in  one  and  the  261. 

same  proceeding.  "It  is  incident  to  every  t  It  is  true  that  a  court  of  equity  will  some- 
common  law  complaint  of  injury  and  damage,  times  give  damages  in  lieu  of  the  specific  per- 
that  the  existence  of  the  injury,  the  right  to  fonnance  of  a  contract,  but  that  is  only,  as  a 
compensation,  and  the  amount  of  damage  general  rule,  where  it  has  obtained  jurisdiction 
alleged  to  have  been  sustained,  are  tried  and  of  the  cause  on  other  grounds.  Wiswall  v. 
decided  in  one  pi'oceeding  and  upon  one  trial."  M'Gown,  2  Barb.  S.  C.  II.  270. 


1  In  Great  Britain,  since  the  last  edition  of  this  work,  an  act  designed  to  amend  the  course 
of  procedure  in  chancery,  commonly  known  as  Sir  Hugh  Cairn's  Act  (21  and  22  Vic.  c.  27), 
has  been  passed,  which  provides  that  in  all  cases  in  which  the  Court  of  Chancery  has  jurisdic- 


CII.    I.]  GENERAL    VIEW    OF    THE    SUBJECT.  9 

Common  Law.  —  With  the  common  law  the  case  is  very  differ- 
ent. The  end  at  which  it  arrives  is,  in  ahnost  all  instances,  one 
and  the  same ;  in  the  actions  founded  upon  contract,  account, 
assumpsit,  covenant,  debt,  the  only  object  of  the  plaintift'  is  to 
obtain,  and  the  only  power  of  the  court  is  to  make  a  judgment 
awarding  a  certain  amount  of  money,  by  way  of  redress  for  the 
breach  of  the  aureement.  In  the  case  of  an  action  brought  for 
the  breach  of  a  contract  for  the  payment  of  money  only,  a  suit 
for  damages  does,  indeed,  as  Lord  Mansfield  has  observed,* 
from  the  nature  of  the  case,  become  a  suit  for  specif c  perform- 
ance} But  this  is  almost  the  only  instance  where  a  suit  at 
law  compels  the  very  thing  to  be  done  which  the  defendant 
agreed  to  do.  In  the  actions  of  tort,  case  and  trespass,  trover, 
replevin  and  detinue,  the  rule  is  the  same,  with  the  exception 

*  Robinson  v.  Bland,  2  Burr.  1077,  10^6.  payment  of  a  sum  of  money,  it  is  a  technical 

"Where  assumpsit  proceeds  on   a  demand  of  fiction  to  call  the  sum  recovered  Z'ama^es;  it 

money,  it  is  in  truth  and  substance,  and  so  is  the  specific  debt,  and  the  jury  give  the  spe- 

taken  in  some  of  the  cases,  a  more  special  ac-  cific  thing  demanded."  Lord  Loughborough  in 

tion  of  Debt;  for  where  the  demand  is  for  the  Rudder  v.  Price,  1  H.  Bl.  547. 

tion  to  entertain  an  application  for  an  injunction  against  a  breach  of  any  contract,  covenant, 
or  agreement,  or  against  the  commission  or  continuance  of  any  wrongful  act,  or  for  the  spe- 
cific performance  of  any  contract,  covenant,  or  agreement,  it  shall  be  lawful  for  the  same  court, 
if  it  think  fit,  to  award  damages  to  the  party  injured,  either  in  addition  to  or  substitution  for 
such  injunction  or  specific  performance,  and  that  such  damages  may  be  assessed  by  a  jury,  or 
before  the  com-t  itself,  as  it  shall  think  fit.'  See  Durell  v.  Pritchard,  1  Law  R.  (Chancery  Ap- 
peals) 244. 

Under  this  act,  it  was  held  by  Sir  W.  P.  Wood,  V.  C,  that  the  court  will  not  award  dam- 
ages in  addition  to  a  decree  for  specific  performance  where  it  does  not  appear  that  the  plaintiff 
has  sustained  any  special  injury.  Hinnock  v.  The  Marchioness  of  Ely,  2  Hemming  &  Miller, 
220.  Nor,  after  making  a  decree  for  specific  performance,  can  it  add  an  order  assessing  dam- 
ages for  the  breach  of  the  covenant.  Corporation  of  Hythe  v.  East,  1  Law  E.  (Eq.)  620.  Nor 
can  it  award  the  damages  unless  there  is  an  agreement  capable  of  being  specifically  performed. 
Lewees  v.  The  Earl  of  Shaftesbury,  2  Law  R.  (Eq.)  270;  Ferguson  v.  Wilson,  2  Law  R. 
(Chancery  Appeals)  77.  It  is  questionable  whether,  even  under  the  new  codes  of  practice  in 
the  American  States,  comprehensive  as  they  are,  stich  a  jurisdiction  could  be  exercised  as  that 
conferred  by  this  English  legislation.     See  Troy  v.  Clarke,  30  Cal.  419. 

Where  courts  of  equity  exercise  jurisdiction  to  assess  damages,  as  in  the  case  of  k  -wrongful 
taking  and  detention  of  property,  they  will  give  neither  vindictive  nor  speculative  damages, 
but  compensation  only.     Sanders  v.  Anderson,  10  Rich.  Eq.  (S.  C.)  232. 

One  great  and  characteristic  head  of  equity  jurisdiction  is  that  of  Trust.  A  trustee  cannot 
purchase  the  trust  estate  for  his  own  benefit.  In  case  of  doing  so  he  will  be  charged  with  the 
full  value  of  the  property  purchased.  Schenck  v.  Dart,  22  N.  Y.  420  ;  Hasbrouck  i>.  Has- 
brouck,  27  N.  Y.  182.  And  in  New  York,  when  any  administrator  sells  the  estate  of  his 
intestate  on  credit  and  without  security,  he  is  to  be  charged  with  the  whole  amount  of  the  pur- 
chase money,  on  the  ground  that  he  was  guilty  of  negligence  in  parting  with  the  estate  without 
payment  or  securitv.  King  v.  King,  3  Johns.  Ch.  352;  Orcutt  v.  Ormes,  3  Paige,  459 ;  Has- 
brouck u.  Hasbrouck,  27  N.  Y.  182. 

1  The  contrary  view  is,  however,  often  entertained.  Thus,  it  is  held  in  California,  that  the 
true  theory  of  the  recovery  on  a  money  demand  is  "  not  that  the  party  recovers  the  particular 
note  or  chose  in  action,  as  is  commonly  imagined,  but  that  he  recovers  damages  for  the  non- 
performance of  the  contract."  Guy  v.  Franklin,  5  Cal.  416.  The  distinction  does  not  often 
involve  any  practical  consequences  ;  but  in  McLane  v.  Elmer  (4  Ind.  R.  239),  a  practical  ques- 
tion turning  on  this  distinction  was  raised.  In  that  case  the  suit  was  on  a  note  jiromising  to 
pay  $300,  "without  the  benefit  of  the  stay  of  execution."  Judgment  was  rendered  that  the 
plaintiff  i-ecover,  etc.,  and  that  defendant  have  no  stay  of  execution.  Bcid,  on  appeal,  that 
the  part  of  the  judgment  prohibiting  stay  of  execution  must  be  reversed.  The  court  could  not 
enforce  the  specific  performance  of  the  agreement,  but  could  only  award  damages  for  the 
breach  of  it. 


10  GENERAL    VIEW    OF    THE    SUBJECT.  [cil.    I. 

that  in  the  two  Latter  the  law  makes  a  feeble  and  partial  attempt 
to  enforce  tlie  retinii  of  the  specific  chattels,  for  the  taking  or 
detention  of  which  the  suit  is  brought. 

To  this  general  rule,  however,  there  are  some  further 
[11]  exceptions,  which  must  be  borne  in  mind.  In  the  action 
of  ejectment,  and  in  the  proceedings  to  recover  dower,  as 
well  as  in  cases  of  nuisance  by  abating  the  grievance  complained 
of,  the  common  law  gives  a  specific  remedy.  By  the  proceed- 
ings of  quo  warranto,  mandamus,  and  prohibition,*  and  the 
great  writ  of  habeas  corpus  also,  these  tribunals  exercise  pow- 
ers very  analogous  to  those  of  a  court  of  equity.  But  of  these, 
so  far  as  they  belong  to  our  subject,  more  particularly  hereafter. 

Blackstone,  in  his  Commentaries,  ranks  damages  among  that 
"  species  of  property  that  is  acquired  and  lost  by  suit  and  judg- 
ment at  law."  "The  primary  right  to  a  satisfaction  for  injuries, 
is  given  by  the  law  of  nature,  and  the  suit  is  only  the  means  of 
ascertaining  and  recovering  that  satisfaction."  "The  injured 
party  has  unquestionably  a  vague  and  indeterminate  right  to 
some  damages  or  other,  the  instant  he  receives  the  injury  ;  and 
the  verdict  of  the  jurors,  and  the  judgment  of  the  court  there- 
upon, do  not,  in  this  case,  so  properly  vest  a  new  title  in  him,  as 
fix  and  ascertain  the  old  one.  They  do  not  give  but  define  the 
right."f 

In  Robert  Pilfold's  case  it  is  said,t  "  It  is  to  be  known  that 
this  word  Damna  is  taken  in  the  law  in  two  several  significations, 
the  one  properly  and  generally,  the  other  relative  and  stricte. 
Damna  pro  injuria  illatd,  and  expcnsce  litis  "  —  in  other  words, 
damages  and  costs  —  "for  damnum,  in  its  proper  and  general 
signification,  dicitur  a  demendo,  cum  demiuutioue  res  deterior  fit.'''' \ 
It  is  of  the  Damna  pro  injuria  illatd,  or  of  damages  as  now 
known  by  that  phrase  in  opposition  to  costs,  that  we  are  here 
treating. 

It  is  of  the  rules  which  govern  this  species  of  property  that 
I  propose  to  treat  in  this  volume,  under  the  name  of  the  Meas- 
ure of  Damages ;  and  I  arrange  the  subject  in  an  order  of  which 
the  following  is  a  general  outline  :  The  origin  of  Damages  under 
the  English  system,  and  the  Tribunals   by  which  they  are  now 

*  And  the  ancient  and  now  obsolete  writ  sit  dapnum,  deinde  damnum ;   ut  inrvoc,  sopnus, 

of  estrepement.  somnus.     Nee  absurde  deducas  a  Grmco  da/ivu, 

t  Book  ii.  ch.  29,  p.  438.  quod  est  jSiuCu,  aut  ex  f?//i('«,  damla,  damnum  ; 

I  Rep.  part  X.  p.  115.  ut  regia,  regmim. —  De  Juro    Bell,    et    Pac. 

§  The  origin  of  the  word  Damnum  is  thus  lib.   ii.  cap.    17.     The   Digest  says,  Damnum 

given    by  Grotins  :     Damnum  forte  a  demendo  et   damnatio  ab  ademtione  et  quasi  deminutione 

dictim.     Ita  Varro,  Libra  V. :  Damnum  a  demp-  patrimonii    dicta    sunt.  —  De  Damno    Infccto, 

tione,  cum  minus  re  factum  quam  quanti  constat.  1.  xxxix,  tit.  2,  §  3. 
Alii  magis  probant  derivare  a  Grceco  dairavi],  ut 


CH.    I.]  -GENERAL    VIEW    OF    THE    SUBJECT.  11 

imposed.  The  General  Principles  by  which  they  are  regulated. 
The  Measure  of  Damages  in  particular  cases.  Set-off,  Recoup- 
ment, and  Mitigation  of  Damages.  The  rule  of  Damages  under 
special  Statutes.  The  Control  exercised  by  the  Court  over  the 
Jury  in  regard  to  Damages.  Pleading,  Practice,  and  Evidence, 
as  applicable  to  the  subject. 

In  investigating  the  origin  of  our  present  system  of  pecuniary 
compensation,  it  is  not  difficult  to  trace  it  back  to  those  Anglo- 
Saxons,  whose  marked  and  peculiar  character  has  so  deeply  im- 
pressed itself  on  every  quarter  of  the  globe. 

Under  the  civil  law,  we  shall  see  hereafter  that  the  rights  and 
remedies  of  the  subjects  of  the  imperial  government  of  Rome, 
were  carefully  protected  in  regard  to  the  matters  of  which  we 
now  speak.  But  when  that  beautiful  and  elaborate  struc- 
ture shared  the  fate  of  its  creators,  the  rules  of  right  sank  [12] 
with  it ;  and  the  law  but  slowly  emerged  from  the  wreck 
and  chaos  of  empire.  For  nearly  ten  centuries  the  intellectual 
progress  of  Europe  was  arrested,  or  retarded  ;  and  during  that 
period  the  earlier  processes  of  civilization  had  necessarily  to  be 
worked  out  anew. 

Anglo-Saxon  Jurisprudence.  —  English  jurisprudence  finds  its 
earliest  monument  in  the  sixth  century,  in  the  laws  of  Ethel- 
bert,  king  of  Kent;  and  this  code,  known  as  Leges  JEthelbirhti, 
illustrates  our  j) resent  subject  too  curiously  to  be  unnoticed 
here. 

In  this  code  we  find  the  attention  of  the  lawgiver  confined 
almost  exclusively  to  wrongs,  or,  as  we  should  now  say,  to  ac- 
tions of  tort ;  and  the  Were,  Weregildimi,  or  Weregild,  —  liter- 
ally a  man's  money,  or  the  price  of  a  man,  —  is  the  earliest 
award  of  damages  to  be  found  in  our  jurisprudence.  The  antiq- 
uity of  compositions  for  murder  is  illustrated  by  Homer  (Iliad 
S.,  498),  where,  in  the  description  of  the  shield  of  Achilles,  two 
disputants  are  represented  wrangling  before  the  judge  for  the 
weregild  or  price  of  blood,  slvexa  noLvyjc,  avh^og  aTto^di^ihov'^' 

"  The  passion  of  revenge,"  says  Mr.  Hallam,  "  always  among 
the  most  ungovernable  in  human  nature,  acts  with  such  violence 
upon  barbarians  that  it  is  utterly  beyond  the  control  of  their  im- 
perfect arrangements  of  polity.  It  seems  to  them  no  part  of 
the  social  compact,  to  sacrifice  the  privileges  which  nature  has 
placed  in  the  arm  of  valor.  Gradually,  however,  these  fiercer 
feelings  are  blunted,  and  another  passion,  hardly  less  powerful 
than  resentment,  is  brought  to   play  in   a  contrary  direction. 

*  Hallam's  Middle  Ages,  vol.  i.  p.  154,  chai).  ii.  part  ii. 


12  GENERAL    VIEW    OP    THE    SUBJECT.  [ciI.    I. 

The  earlier  object  of  jurisprudence  is  to  establish  a  fixed  atone- 
ment for  injuries,  as  much  for  the  preservation  of  tranquillity  as 
the  prevention  of  crime.  Such  were  the  weregilds  of  the  bar- 
baric codes."  ^ 

"Damages,"  says  Sir  Francis  Palgrave,  "  recovered  in  a  civil 
action  for  an  assault,  or  any  personal  injury  not  being  a  felonious 
act,  correspond  to  the  Anglo-Saxon  Were.  When  Alfred 
[13]  enacts  that  the  seduction  of  the  wife  of  a  Twelf  hoend- 
man,  or  an  Eorl,  is  to  be  compensated  by  payuient  of  one 
hundred  and  twenty  shillings ;  of  the  wife  of  a  Six  hoandman, 
by  payment  of  an  hundred  shillings ;  and  of  the  wife  of  a 
Ceorl,  by  payment  of  forty  shillings,  he  does  nothing  more 
whatever  than  fix  and  declare  the  amount  of  the  verdict,  in- 
stead of  leaving  the  assessment  of  damages,  as  we  do,  to  the 
direction  of  the  judge  and  the  discretion  of  the  jury."  f 

The  Were  is  not  to  be  confounded  with  the  Wite,  the  one 
answering  to  our  civil  damages  for  personal  trespasses,  t  the 
other  to  our  criminal  mulct  or  fine.  It  is  to  both  the  tvere  and 
the  tvite  that  Tacitus  refers  when,  speaking  of  the  Germans,  he 
says,  "  /Scd  et  levioribus  delictis  pro  modo,  poena  ;  equorum  pecorum- 
que  numero  convicti  mulctantur,  pars  r)%ulctw  regi  vel  civitati,  pars  ipsi 
qui  vindicatur,  vel  propinqids  ejus,  exsolviturT  § 

It  is  a  curious  fact,  that  the  laws  of  remote  and  barbarous 
periods  show  the  most  minute  care  in  fixing  the  amount  of  com- 
pensation to  be  recovered  by  way  of  damages.  We  have  the 
laws  of  twelve  Anglo-Saxon  monarchs,  from  the  middle  of  the 
sixth  century  to  the  Norman  Conquest.  Of  these,  the  earliest, 
as  I  have  said,  are  those  of  Ethelbert,  in  the  latter  part  of  the 

*  Hallam,  ut  supra.     La  Composition,  says  Dr.  Lappenbcrji;,  in  his  histor}^  of  England 

Guizot,  est   le  premier  pas    de  la   legislation  under  the  Anglo-Saxon  Kings  (see  B.  Thorpe's 

criminelle,  hors  du   re'gimc  de   la  vengeance  translation,  London,    1845,   vol.   ii.   p.    336, 

personnelle La  composition    est    une  Particular  and  Penal  Laws),  mentions  several 

tentative    pour    substituer    un    regime   legal  other  fines  imposed,  besides  the  Were  and  the 

alaguerre;  c'estlafacultedonne'ea  I'ofFenseur,  Wite,  in  cases  of  homicide.     He  says,  "  The 

de  se  mettre,  en  payant  une  certaine  somme  a  relations  of  the  slain  received  the  whole  were- 

I'abri  de  la  vengeance  de  roftense;  elle  impose  gild  annexed  to  his  rank  in  the  community." 

k  I'offcnse'  I'obligation  de  renonper  a  I'emploi  "  Previously  to  paying  the  loeregild,  the  king's 

de  la  force.  —  Hist,  de  la  Civilization  en  France,  mund,  a  fine  to  the  king  for  the  breach  of  his 

torn.  i.  pp.  275  and  276  (Deuxierae  ed.).  protection,   was   to   be    levied  ;    after  which, 

t  Palgrave's  Rise  and  Progress  of  the  Eng-  within  twenty-one  days,  the  heahfang  (appre- 

lish  Commonwealth,  vol.  i.  pp.  205  and  32.  hensio  colli,  collistrigiura),  a  mulct  in  commu- 

X  "  The    Wite  was   a  penalty  paid  to    the  tation  of  the  pillory,  or  some  similar  punish- 

crown  by  a  murderer.      The    Were  was  the  ment,  was  to  be  discharged,  and  after  that, 

fine  a  murderer  had  to  pay  to  the  fiimily  or  within  twenty-one  days,  the  manbot,  or  indem- 

relatives  of  the  deceased  ;  and  the   Wite  was  nity  to  the  lord  of  the  slain,  tor  tiie  loss  of  his 

the  fine  paid  to  the  magistrate  who  presided  man.     In  addition  to  all  these,  there  was  still 

over  the  district  where  the  murder  was  perpe-  the  fyht  wite,  due  to  the  crown  for  the  breach 

trated.    Thus  the  Wite  was  the  satisfaction  to  of  the   peace,  which,  as  well  as  the  manbot, 

be  rendered  to  the  community  for  the  public  could  never  be  remitted." 

wrong  which  had  been  committed,  as  the  Were  §  De  Moribus  Germanise,  c.  12.     Palgrave, 

was  to  the  family  for  their  private  injury." —  vol.  i.  p.  99. 
Bosworth's    Anglo-Saxon    Dictionary,    in   voc- 
Were  and  Wite. 


CII.    I.]  GENERAL    VIEW    OF    THE    SUBJECT.  13 

sixth  century ;  and  his  application    of  the    zvere,  or,  in  other 
words,  his  rule  of  damages,  is  singularly  minute. 

"  If  the  hair  be  plucked,  or  pulled,  let  fifty  sceattas  ^ 
be  paid  in  compensation.     If  the  scalp  be  cut  to  the  bone    [14] 
[of  the  skull]  so  that  the  latter  appear,  let  compensation 
be  made  by  payment  of  three  shillings. 

"  If  an  ear  be  cut  off,  let  compensation  be  made  by  payment 
of  twelve  shillins^s. 

"  If  a  piece  of  the  ear  be  cut  off,  let  compensation  be  made 
by  payment  of  six  shillings. 

"  Whoever  fractures  the  chin  bone,  let  him  forfeit  twenty 
shillinofs  for  the  offense. 

"  For  each  of  the  front  teeth,  six  shillings. 

"For  the  tooth  that  stands  by  the  front  teeth  (on  either  side), 
four  shilHngs. 

"  For  every  [finger]  nail,  one  shilling. 

"  If  the  great  toe  be  cut  off,  let  a  fine  of  ten  shillings  be 
incurred. 

"  If  the  great  toe  nail  be  cut  off,  let  thirty  sceattas  be  paid 
for  compensation.     For  every  other  toe  nail,  ten  sceattas."  '\ 

It  will  be  noticed  that  the  tvere,  or  damages,  in  the  laws  of 
Ethelbert,  is  assessed  in  money.  But,  says  Sir  Francis  Palgrave, 
"  until  a  metallic  currency  was  introduced,  the  legal  fines  and 
penalties  were  paid  in  kind ;  in  the  laws  of  Hoel  Dda  all  such 
fines  are  reckoned  in  cattle,  and  the  same  mode  of  computation 
prevails  in  the  BreJion  laws  of  Ireland,  and  the  '  Assijthments  for 
Slauchter''  of  the  Scots.  An  intermediate  stage  is  denoted  by 
the  laws  of  the  Continental  Saxons.  Their  weres  are  fixed  in 
soUdi,  or  shillings.  But  the  solidus  was  an  imaginary  denomina- 
tion ;  and  instead  of  counting  down  the  coin,  the  offending  party 
might  drive  his  legal  tender  into  the  farm  of  the  jDlaintiff  An 
ox  passing  sixteen  months  old,  represented  the  greater  solidus ; 
the  lesser  solidus  was  a  yearling  ox,  or  a  ewe  and  her  lamb. 

Amongst  some  Saxon  tribes,  the  solidus  was  reckoned 
in  corn ;  thirty  bushels  of  oats,  forty  of  rye,  and  sixty  of   [15] 
wheat,  being  each  its  equivalent ;  and  it  is  most  probable 

*  A  silver  coin,  weight  19  gr.     Vide  Haw-  no  part  of  the  law  should  be  written  without 

kins'  English  Silver  Coins,  p.  18.  giving  them  a  careful  examination. 

t  I  have  taken  the  above  extract  from  Sir  Besides  the  folio  edition  of  the  Anglo-Saxon 

Francis  Palgrave,  vol.  ii.  page  cvii.     The  last  laws,  published   by  the  Record   Commission, 

Latin  translation  of   the  Anglo-Saxon   laws  there  is  an  edition  in  two  volumes,  8vo,  which 

was  by  Wilkins,  in  1721.    The  recent  Record  I  have  now  before  me;  the  translation  of  the 

Commission,  among  its  most  valuable  and  im-  passage   above   is   substantially  the  same   as 

portant   labors   in  the  field  of  early  English  that  of  Palgrave,  with  the  exception  that,  in 

jurisprudence,  have  published,  under   the  di-  the  former,  '' Bote"  is  used  for  its  equivalent 

rection  of  Mr.  Thorpe,  the  first  English  trans-  '^compensation." 
lation  of  these  curious  codes.     The  history  of 


14 


GENERAL   VIEW    OF   THE   SUBJECT. 


[cii. 


that  the  necessity  of  adjusting  the  ancient  fines  to  the  standard 
of  Roman  Bi'itain,  was  the  cause  which  produced  the  ennctment 
of  the  Kentish  laws."  *  "  The  coined  money  in  EngLand,"  says 
Mr.  Sergeant  Heywood,  speaking  of  the  Saxon  period,  "  was  so 
triflhig  in  quantity,  that  most  of  the  transactions  of  commerce, 
and  all  buying  and  selling,  Avere  carried  on  by  barter,  and  cattle 
obtained  the  name  of  Viva  pecimia,  from  being  received  as  money 
upon  most  occasions,  at  certain  regulated  prices."  f 


*  Paliivavc's  Ilistorv,  vol.  i.  ]).  44. 

t  Till!  Ranks  uf  the  People  under  the 
Anglo-Saxon  (Jovernmont,  by  Samuel  Hey- 
wood,  Sergeant,  Introd.  p.  lii.  In  Wera 
reddere  poterit  qnis,  says  the  law  of  the  Con- 
queror, §  10,  equum  non  castratum  pro^tXX. 
solidis,  et  tauruin  pro  X..  solidis,  et  jumentum  pro 
V.  solidis.  And  see  Lex  Saxonura,  tit. 
xviii.  De  Solidis.  As  to  the  value  of  the 
Solidus,  Gibbon  says,  "  Till  the  twelfth  cen- 
tury we  may  support  the  clear  account  of 
twelve  denarii,  or  pence,  to  the  solidus,  or  shil- 
ling, and  twenty  sol  id  i  to  the  jjound  weight  of 
silver,  about  the  pound  sterling.  Our  money 
is  diminished  to  a  third,  and  the  French  to  a 
fifteenth  of  this  primitive  standard." — Hist. 
CIl.  58,  note. 

The  use  of  cattle  as  a  measure  of  value  is 
of  very  great  antiquity,  —  thus  Homer  :  — 

The  third  bold  game  Achilles  next  demands, 
And  calls  the  wrestlers  to  the  level  sands ; 
A  massy  tripod  for  the  victor  lies, 
Of  twice  six  oxen,  its  reputed  price  ; 
And  next,  the  loser's  spirits  to  restore, 
A  female  captive,  valued  but  at  four. 

Iliad,  book  23, 1815. 

It  seems  probable  that  money  became  the 
general  measure  of  value  in  England  not  long 
after  the  Norman  Conquest. 

The  old  feudal  services  were  all  originally 
rendered  in  kind  ;  the  reliefs  in  horses  and 
arms  —  military  service  in  person.  But  in  the 
reign  of  Henry  II.,  "  the  humor  of  the  times 
being,"  says  Mr.  Sullivan,  "that  everything 
should  be  paid  in  money  "  (Lectures  on  the 
Laws  of  England,  Lect.  31,  p.  290),  the  reliefs 
were  commuted  for  a  specific  sum,  and  per- 
sonal service  was  exchanged  by  the  same  king 
for  escuage  and  scutage,  and  the  same  thing 
took  place  in  regard  to  rents  (pp.  288  and  289). 
See  also  Heywood  on  Ranks. 

The  civilized  Romans  recognized  a  metallic 
currency  as  the  measure  of  value  :  qui  nonfacit 
quod  promisit,  in  pecuniam  numeratam  condemna- 
tur,  sicut  evenit  in  omnibus  faciendi  obligationibus. 
—  L.  13  in  f.  ff:  de  re:  judic ;  and  says 
Domat,  vol.  i.  p.  271;  Des  Interets,  Uargent 
tient  lieu  de  toutes  les  choses  quon  p>eut  estimer. — 
Liv.  iii.  tit.  v.  sect.  ii.  §  16. 

The  laws  of  the  Saxons,  and  those  of  Hoel 
Dda,  both  noticed  in  the  above  extract  from 
Sir  Francis  Palgrave,  may  not  be  without 
sufficient  interest  in  connection  with  our  pres- 
ent subject  to  permit  a  brief  note.  The  date 
of  the  Leges  Saxonum  et  Frisionum  has  been 
the  subject  of  great  controversy  among  the 


antiquarians  [see  a  Historical  Treatise  on 
Trial  by  Jury,  Wager  of  Law,  etc.,  by  Thorl 
Gudm.  Repp,  Edinlnirgh,  1832,  p.  23] ;  some 
ascribing  them  to  Charlemagne,  and  others  to 
Harold  Blue  Tooth  of  Denmark,  whose  reign 
closed  A.  D.  984.  The  latter  opinion  would 
seem  the  better ;  in  either  case,  these  laws  are 
of  interest  to  the  scholar  of  English  jurispru- 
dence, as  they  at  all  events  belong  to  the  same 
race  from  which  our  ancestors  sprang,  al- 
though after  they  had  left  the  parent  land. 
Nothing  can  exceed  the  simj^licity  and  brevity 
of  these  codes  :  — 

In  Christi  nomine  incipit  Legis  Saxonum, 
Liber  de  Vulneribus. 

1.  De  ictu  nobilis,  solid.  XXX.  vel  si  ncgat, 
tertia  manu  juret. 

2.  Livor  et  Tumor,  LX.  solid,  vel  sexta 
manu  juret. 

3.  Si  sanguinat,  cum  CXX.  solid,  vel  cum 
tiudecim  juret. 

4.  Si  OS  paruerit,  CLXXX.  solid,  vel  cum 
undecim  juret. 

7.  Si  per  capillos  alium  comprehenderit, 
CXX.  solid,  componat  vel  XII.  a  manu  juret. 

The  two  bodies  of  law,  the  Lex  Saxonum 
and  the  Lex  Frisionum  may  be  found  at  length 
in  the  Codex  Legum  Antiquarum  of  Liuden- 
brog,  a  curious  collection  of  the  legislation  of 
the  Middle  Ages. 

Hoel,  or  Howell  Dda,  Howell  the  Good, 
was  a  King  of  South  Wales  in  the  10th  cen- 
tury; the  date  of  his  compilation,  which  con- 
sists of  three  codes,  the  Venedotian,  Dime- 
tian,  and  Gwcntian,  is  between  914  and 
942,  and  it  appears  that  laws  of  a  similar 
character  are  traceable  as  far  back  as  the  6th 
century.  The  republication  of  these  statutes 
forms  one  of  the  great  labors  of  the  Record 
Commission.  These  laws  exhibit  the  most 
minute  particularity  in  the  estimation  of  dam- 
ages. They  sjjeak  of  various  sorts  of  compen- 
sation for,  — 

I.  Saraad,  or  a  disgrace. 

II.  Galanas,  or  murder. 

And  these  terms,  saraad  and  galanas,  are 
also  used  for  the  mulct  imposed  for  the  offense 
or  crime.  There  were  also  two  other  fines ; 
the  Dirwy  (from  Dir,  force),  a  fine  of  twelve 
kine,  or  three  pounds ;  and  Camlwrw,  a  fine 
of  three  kine,  or  nine  score  pence. 

The  following  extracts  illustrate  this  legis- 
lation.    Venedotian  Code,  p.  115. 

§  27.  In  three  ways  Saraad  occurs  to  every 
person  in  the  world ;  by  striking,  assaulting, 
and  taking  by  violence  from  him ;  and  if  it 


CII.    I.]  ANGLO-SAXON    SYSTEM.  15 

The  laws  of  the  Anglo-Saxon  monarchs,  which  we  have    [16] 
from  the  period  -of  Ethelbert  of  Kent  to  the  Norinan  Con- 
quest, contain   all,  more   or  less,  the   application   of  the 
tvei^e ;  but  in  none,  with  the  exception  of  those  of  Alfred,    [17] 
between  a.  d.  871  and  901,  do  we   find  the  same  minute 
classification  of  wrongs  and  remedies  which  we  have  just  had 
occasion  to  notice. 

In  the  laws  of  Alfred,  the  rates  are  higher,  whether  owing  to 
a  better  appreciation  of  personal  rights,  or  to  the  increase  and 
consequent  depreciation  of  the  currency.  In  the  laws  of  the 
Conqueror,  the  Wercs  become  very  few.  Perhaps  this  is  evi- 
dence of  a  civilization  gradually  increasing,  and  a  jurisprudence 
slowly  improving ;  for  feeble  certainly,  and  unreliable,  must  be 
the  tribunal  charged  with  the  task  of  imposing  damages  in  civil 
suits,  if  the  legislator  considers  it  unsafe  to  be  trusted  with  the 
assessment  of  the  amount.  This  elaborate  and  minute  specifi- 
cation, therefore,  though  on  its  face  it  appears  to  indicate  the 
care  and  watchfulness  of  the  lawgiver,  on  a  closer  examination 
furnishes  stronger  proof  of  his  distrust  of  the  judiciary.  Arbi- 
trary rules,  which  do  not  bend  to  the  justice  of  the  particular 
matter,  especially  when  used  to  fix  values,  are  always  a  mis- 
fortune and  a  defect  in  jurisprudence  :  they  should  never  be 

be  a  man,  if  his  wife  be  violated,  it  is  saraad  P.  142.  Here  lowerth,   the  son  of  Madog, 

to  him  ;  if  it  be  a  woman,  if  she  find  another  son  of  Raawd,  saw  it  to  be  expedient  to  write 

woman  with  her  husband,  it  is  saraad  to  her;  the  worth  of  the  building,  and  the  furniture, 

and  so  nobody  escapes  without  being  subject  cotilhige,  and  corn  damage,  together  with  the 

to  saraad.  —  proof  book.  — 

§  27.  The  Galanas  of  a  steward,  a  chief  of  P.  145.  An  iron  pan,  a  legal  penny, 

a  kindred,   a  canghellor,   and  a  chief  hunts-  A  flail,  a  farthing.  — 

man,  is  nine  score  and  nine  kine,  once  aug-  P.  149.  Wadded  boots,  four  legal  pence. — 

mentcd  ;  and  the  saraofZ  is  nine  kine  and  nine  P.  151.  Every  other   thing  whatsoever,  on 

scorce  of  silver,  once  augmented.  —  which  there  is  no  legal  worth,  is  to   be  ap- 

P.  108,  §   12.  A  dirivy  is  due  for  fighting;  praised. — 

fighting    is   assault   and   battery,  and   blood  §  XXIII.  Now  of  the  members  of  the  hu- 

and  wounds  —  the  three  things  that  constitute  man  body. — 

fighting;    and   therefore   it   is   right   to   pay  P.  157.  Of  corn  damage  this  treats. — 
diricij  for  them.     Tlie  amount  of  the  diriri/  is  §  16.  If  a  horse  be  found  stretching  his  neck 
twelve  kine,  or  three  pounds  ;  the  amount  of  over  a  hedge,  eating  the  corn,  it  is  not  right  to 
the  camlwrw  is    three    kine,    or    nine   score  take  him,  but  to  obtain  compensation  for  dam- 
pence.  —  age,  unless  he  be  exculpated. 

P.  125,  §  38.  For  a  dog,  or  for  a  bird,  or 

for  anything  of  that  kind,  there   is   neither  Anomalous  Welsh  Laws, 

diriiy  nor  forfeiture   of  life  ;  but   camlwrw  to  P.  708,   §   5.    Three   punishments   for  fero- 

tlie   lord,    and   amends  to  the  owner  of  the  cious  acts ;  the  payment  of  galanas  for  the 

property.  —  slain ;  death  to  him  who  does  the  deed,  and 

P.  137.    Of  the  worth  of  fowls.  harrying   spoliation   of  the  projjei'ty   of  the 

1.  A  hen  is  one  penny  in  value.  murderer. 

2.  A  cock  is  two  hens  in  value. —  As  I  have  said,  I  take  these  extracts  from 
P.  140.   Of  skins  this  treats.  the  Ancient  Laws  of  Wales,  published  in  one 

1.  The  skin  of  an  ox  is  eight  pence  in     of  the  folios  of  the  Record  Commission;  the 

value.  valuable  labors  of  that  Commission,  and  their 

2.  The  skin  of  a  hart,  eight  pence.  munificent  liberality  to   the  literary  institu- 
P.  141.  Of  the  worth  of  trees  this  treats.           tions  of  this  country,  cannot  be  too  Irequently 

1.  The  worth  of  an  oak,  six  score  pence.       nor  honorably  noticed. 

2.  The  worth  of  a  knurled  oak,  on  which 

there  is  no  fruit,  four  legal  pence. 


16  GENERAL    VIEW    OF   THE    SUBJECT.  [CH.    I. 

tolerated,  unless  on  account  of  some  peculiar  and  extraordi- 
nary  difficulty  in  arriving  at  the  truth  of  the"  individual  case. 

What  the  judiciary  was  under  the  Anglo-Saxon  government, 
it  is  now  apparently  impossible  to  learn.  Sir  Francis  Palgrave 
says,*  "Some  kind  of  adjudication  probably  took  place 
[18]  amongst  the  Anglo-Saxons  before  the  zvere  could  be  re- 
quired." But  any  inquiry  into  this  matter,  even  if  prac- 
ticable, would  lead  us  far  beyond  our  proper  limits.  It  may 
not,  however,  be  foreign  to  our  subject  to  notice,  that  if  the 
zvere  or  the  zvite  could  not  be  paid,  it  seems  slavery  was  the 
consequence.  "  The  criminal  whose  own  means  were  insufficient, 
and  whose  relatives  or  lord  would  not  assist  him  to  make  up  the 
legal  fine  he  had  incurred,  was  either  compelled  to  surrender 
himself  to  the  plaintiff  or  to  some  third  party,  who  paid  the 
sum  for  him  by  agreement  with  the  injured  party.  Such  a 
serf  was  called  criminal  slave.  These  are  the  servi  redempimie 
of  Henry  the  First."  f 

We  now  come  to  the  examination  of  the  tribunals  which, 
under  our  present  system,  are  charged  with  the  duty  of  assess- 
ing the  amount  of  damages.  Various  modes  of  trial  have  ob- 
tained at  different  periods  of  English  jurisprudence  ;  trials  by 
ordeal,  by  battle,  wager  of  law,  and  by  jury. 

Trial  by  Ordeal.  —  The  trial  by  ordeal,  finally  prohibited  in 
the  early  part  of  the  thirteenth  century ,t  was  the  creature  of  a 
superstitious  age.  It  was  the  offspring  of  the  clergy,  and  per- 
haps one  among  their  many  efforts  to  counteract  the  violence 
of  the  military  portion  of  the  community.  In  this  aspect,  it 
may  not  have  been  without  its  uses. 

Trial  by  Battle.  —  The  trial  by  battle  was  the  natural 
growth  of  the  period  at  which  we  find  it  existing.  "  Man," 
says  the  learned  and  sagacious  writer  whom  I  have  already 
several  times  quoted.  "  never  begins  by  introducing  any  law 
which  is  entirely  unreasonable ;  but  he  very  frequently  allows  a 
law  to  degenerate  into  folly,  by  obstinately  retaining  it  after  it 
has  outlived  its  use  and  application."  §  We  should  naturally  ex- 
pect, in  a  barbarous  and  disturbed  state  of  society,  where  every 
man's  house  was  a  castle,  and   the  whole   structure  of  society 

*  Vol.  i.  p.  205.  pected  to  our  knowledge  of  the  Anglo-Sax- 

t  The  Saxons  in  England,  by  J-  M.  Kemblc,  ons. 

1849,  vol.   i.  p.  197.     In   the  continuation  of  J  Ordeals    were    prohibited    by    the    18th 

this  work,  which  the  preface  informs  us  is  to  Canon   of  the  Fourth  Lateran  Council,  a.  d. 

discuss,  among  other  things,  the  law  of  de-  1215.     Palgrave,  vol.  i.  p.  66. 

scent,   contracts,   and    the    forms   of  judicial  §  Palgravc's  Rise  and  Progress,  vol.  i.   p. 

process,  a  very  valuable  addition  may  be  ex-  229. 


CH. 


I] 


MODES  OF  TRIAL. 


17 


upon  a  martial  basis,  that  questions  of  right  would  originally  be 
decided  by  an  appeal  to  force,  and  that  the  (ii-st  efforts  of  the 
legislator  and  the  jurist  would  only  be  to  systematize  and 
solenniize  this  mode  of  determining  a  controversy  by  subjecting 
it  to  fixed  rules,  and  decreeing  the  result  to  determine  the  right 
forever.*  This  mode  of  trial  naturally  gave  wayf  before  the 
advancing  spirit  of  order,  and  little  trace  of  it  appears  after  the 
fourteenth  century,  t 

Wager  of  Law.  —  The  wager  of  law,  or  trial  by  com-  [19] 
purgators,  of  which  we  see  constant  traces  in  the  Anglo- 
feaxon  laws,  and  which  existed  till  a  very  recent  period,  §  may 
claim  a  more  reasonable  origin.  A  party  accused  of  an  offense 
exonerated  himself  from  the  charge,  by  the  oaths  of  a  certain 
number  of  witnesses  ;  and  as  Sir  Francis  Palgrave  well  observes, 
"  In  criminal  cases  the  whole  theory  of  this  trial  resolves  itself 
into  the  ordinary  practice  of  our  modern  courts  of  justice.  Evi- 
dence has  been  given  by  which  a  presumption  is  raised  against 
the  accused ;  but  not  being  conclusive,  it  is  rebutted  by  the 
proofs  of  general  good  character."|| 


*  Ainsi,  says  M.  Guizot,  s'est  introdiiit 
dans  la  legislation  le  combat  judiciairc,  coninie 
line  rc'i:ularization  du  droit  de  guerre,  iine 
areiie  liiuite'e  oitvertea  la  vengeance. —  Guizot, 
Hist,  de  la  Cicillzation  en  France,  toni.  i.  p. 
294  (deuxieme  ed.). 

t  Altlioiiyh  singular  as  it  appears,  the  ap- 
peal of  death  was  not  abolished  in  England 
till  1819.  Sec  Ashford  v.  Thornton,  I  B.  & 
Aid.  405,  which  resulted  in  an  act  of  Par- 
liament.^ The  reign  of  Richard  II.,  1398, 
saw  one  famous  trial  by  battle  (being  an 
appeal  of  treason)  between  two  great  k)rds, 
Hereford  and  Norfolk ;  and  Shakespeare's 
genius  has  fixed  it  in  our  literature :  — 

"  What  my  tongue  speaks,  my  right  drawn  sword  may 
prove." 

In  France,  trials  by  battle,  le  r/a/je  de 
hafailk,  were  abolished  as  far  as  regarded  the 
Royal  Domains,  by  St.  Louis  (Louis  IX.),  by 
his  ordinance  of  the  year  1260.  He  prohib- 
ited les  batailles  en  justice,  mettant  en  leur 
place  preures  par  temoins,  sans  6ler  les  aittres 
bonnes  el  loi/nles  preuves  itsite'es  en  coiir  laiqne 
jnsqiC  a  ce  temps.  So  as  to  appeals  or  fausse- 
ments  de  jugenient^,  as  they  were  called,  and 
which  were  eifected  by  a  challenge  to  the 
judge,  to  mortal  combat :  they  were  done 
away  by  the  8  th  Article  of  the  same  ordi- 
nance :  Si  aucun  vent  fansser  jiigeinent,  en 
pays  la  oh  faussement  de  jugement,  affiert,  il 
n'y  aura  point  de  hataille ;  mais  les  clameurs, 
les   repons,  et  autrts   erremens  du  plaid  seront 


rapport^s  en  notre  conr.  These  provisions 
were  intended  to  apply  only  to  the  Royal  Do- 
mains, but  the  influence  of  the  lawyers  {les 
Le'i/istes)  gradually  established  the  prohibition 
throughout  the  kingdom.  See  Sismondi's 
Hist,  des  Francs,  tom.  viii.  ch.  xi. ;  Guizot's 
Hist,  de  la  Civiliz.  en  France,  vol.  iv.  p.  162 
(deuxieme  ed.)  ;  Stephens'  Lectures  on  the 
Hist,  of  France,  lecture  viii.,  for  an  interesting 
and  picturesque  description  of  the  manner  in 
which  the  lawyers  ousted  the  barons  out  of 
their  own  courts. 

I  In  France,  the  trial  by  battle  was  greatly 
restricted  by  an  ordinance  of  St.  Louis  (Louis 
IX.,  1226-1270).  See  Sismondi's  Precis  de 
I'Histoire  de  France,  vol.  i.  p.  366,  and 
Guizot's  Hist,  de  la  Civilization,  vol.  iv.  ]). 
1G2.  St.  Louis  abolished  it  as  to  the  Domains 
of  the  Crown.  M.  Guizot  calls  private  wars 
and  judicial  duels  (p.  159),  "les  deux  bases 
cssentiels  de  la  feodalite." 

§  3  Black.  Com.  ch.  22,  p.  345.  In  New 
York,  by  2  Revised  Statutes,  p.  410,  part  iii. 
ch.  vii.  tit.  iv.  art.  2,  §  4.  "  Trials  by  battle, 
and  by  the  grand  assize,  and  all  other  modes 
of  trial  except  by  a  jury  or  by  referees,  are 
forever  abolished."  Wager  of  law  existed  in 
England  till  very  recently.  It  was  abolished 
in  all  cases  by  3  and  4  W.  4,  ch.  42,  sec.  13  ; 
Chitty  on  Pleadings,  vol.  i.  p.  142. 

II  Vol.  i.  p.  233.  This  analogy  applies, 
however,  only  to  those  cases  where  the  evi- 
dence is  presumptive,  and  not  positive ;  as  in 
the  latter  class  testimony  to  character  is  ad- 


1  Act  59  Geo.  III.  ch.  46. 


18  GENERAL   VIEW    OF   THE    SUBJECT.  [cil.    I. 

The  Jury.  —  Of  the  four  modes  of  trial  of  which  we  have 
spoken,  then,  tlie  one  that  has  survived  them  all,  after  under- 
going, however,  very  material  modifications  in  its  construction, 
is  the  trial  hy  jiirij.  But  it  is  not  within  the  scope  of  our  pres- 
ent subject,  to  trace  the  gradual  formation  of  this  institution. 
Suffice  it  to  say,  that  trial  by  jury,  originally  a  trial  by  wit- 
nesses, the  jury  being  themselves  the  witnesses,*  grad- 
[20]  ually  supplanted  the  various  modes  of  trial  by  battle, 
ordeal,  and  wager  of  law,  and  from  the  time  of  the 
reign  of  Henry  II.  seems  to  have  begun  to  acquire  stal^ility, 
if  not  its  present  form.f  At  all  events,  at  the  period  of  the 
earliest  systematic  records  of  judicial  proceedings  in  England, 
the  jury  had  become  the  tribunal  which  disposed  of  the  ques- 
tion of  fixct,  and  the  amount  of  damages  became  a  principal 
part  of  their  jurisdiction.  All  hope  of  discovering  the  precise 
date  is  now,  perliaps,  lost,  as  is  the  case  in  regard  to  the  epoch 
of  still  greater  interest,  that  of  the  origin  of  parliamentary 
representation. t  It  is  certain  that  damages,  by  their  present 
name,  were  known  at  a  very  early  period  of  the  English  law. 
The  statute  of  Gloucester,  passed  6  Edward  I.,  a.  d.  1278,  § 
after  giving  damages  in  certain  real  actions  in  which  they  were 
not  previously  recoverable,  goes  on  to  give  costs  in  the  same 
cases,  and   closes  by  enacting  that  the  act  shall  apply  to  all 


mittcd   only   in   mitigation   of   the   sentence,  form,  a  trial  by  jnry  was  therefore  only  a  trial 

La    vc'ritable    origine    des    Coiijwatores,    says  by  witnesses."  —  Palgrave,  vol.  i.  p.  244. 

Guizot,  c'est  quo  tout  autre   nioyen   de   con-  t  Palgrave,  vol.  i.  p.  6(5  and  p.  243.      See 

stater  les  faits  etait  a  jieu  pres  inipraticable.  Repp  on  Aneient  Trial  liy  Jury,  already  cited 

Pensez  a  ce  qu'exige  une  telle  recherche,  a  ce  (p.    14,    in    notes),    an    ingenious    treatise    to 

qu'il  faut  de  develojjpement  intellectuel  et  de  illustrate  the  gradual  formation  of  the  jury, 

puissance  publique  pour  le  rapprochement  et  from  the  wager  of  law  and  the  trial  by  battle, 

la  confrontation  des  divers  genres  de  preuves,  To  Sir  Francis  Palgrave's  work  I  acknowl- 

pour   recueillir   et  debattre  des  temoignages,  edge  great  obligations.     Indeed,  to  the  legal 

pour  amener  seulenient  les  temoins  devant  les  student  who  desires  an  acquaintance  with  the 

juges  et  en  obtcnir  la  vcrite  en   presence  des  origin  of  our  jurisprudence,  it  is  indispensable, 

accusateurs   et   des   accuses.      Rien   de   tout  Mr.  Petheram  says,  in  his  Sketch  of  Anglo- 

ccla  n'etait  possible  dans  la  socie'te  que  regis-  Saxon  Literature,  that  at  its  appearance  it 

salt  la  loi  saliqne ;  et  ce  n'est  point  ])ar  choix  was   not   peculiarly  successful ;    but  he  well 

ni  par  aucune  combinaison  morale,  c'est  par-  adds,  "  that  for  many  years  to  come,  it  must 

cequ'on  ne  savait  et  ne  pouvait  mieux  faire,  form  the  basis  of  our  knowledge  respecting 

qu'on   avait   recours   alors    an    jugement   de  the  frame-work  of  tlie  Anglo-Saxon  govern- 

Dicu   et   au    sermcnt    des   parens."  —  Guizot,  ment. — Pcthcram's  Shtch,  p.  146.     Those, 

Jlistoire  de  la  CivilizaUfm  en  France,  vol.  i.  pp.  also,  who   desire   a  philosophical  view  of  the 

284,  285.  barbaric  codes,  cannot  be  better  referred  than 

*  "  The  ancient  jurymen  were  not  impan-  to  M.  Guizot's  Histoire  de  la  Civilization  en 

elcd  to  examine  into  the  credibility  of   the  France,  the  9th  and   10th  lessons  of  the  first 

evidence  ;  the  question  was  not  iliscussed  and  vohmie,  and  Mr.  llallam's  History  of  Europe 

argued  before  them ;  they,  the  jurymen,  were  during  the  Middle  Ages,  vol.  i.  chap,  ii.,  on 

the  witnesses  themselves,  and  the  verdict  was  the  Feudal  System. 

substantially  the  examination  of    these  wit-  |  Turner's    Anglo-Saxons,    book    viii.    eh. 

nesses,   who   of   their    own   knowledge,   and  iv.  vol.  iii.  p.  185,  and  A])])endix  III.  ch.  ix. 

without  the  aid  of  other  testimony,  afforded  vol.  ii.  p.  236. 

their  evidence  respecting  the  facts  in  question  §  Stat,  at  Large,  by  Ruffliead,  vol.  i. 
to  the  best  of  their  belief.     In  its  primitive 


CII.    I.]  TRIAL    BY    JURY.  19 

cases  where  the  party  is  to  recover  damages.     "Et  tout  ceo 
soit  tenu  en  tout  cas  ou  homme  recov^er  damages.''^'' 

The  jury  in  its  present  form  dates,  as  has  been  already  [21] 
said,  from  about  the    period  of  the  reign    of   Henry  II. 
(1150. )t     Previous  to  that  time,  the  great  mass  of  business  was 
transacted   in   the  county  courts,  where  the  freeholders  were 
judges  of  both  law  and  fact.     The  Aula  ov' Curia  Regis,  o^  which 
the  King's  Bench  is  a  remnant,^  disposed  of  the  causes  of  the 
great  Lords  only.     The  exchequer  already  existed,  but  was  a 
part  of  the  Aula  Regis.'^      It  would  seem  that  this  freeholders' 
court  became  very  obnoxious,  as  ignorant  of  law,  rendering  it 
multiform,  unequal,  and  unjust;    and  these  abuses  were  rem- 
edied by  the  appointment  of  justices  in  eyre,  who  settled  the 
questions  of  law,  leaving  to   the  jury  the   questions  of  fact.|| 
The  precise  origin  of  this  curious  division  of  power,  it  is,  as  has 
been  said,  now  impossible  to  trace  with  accuracy.     A  similar 
or  analogous  distinction  existed  in  the  Republican  age  of  the 
Roman  Law  under  the  procedure  by  formula  ;  but  that  feature  of 
their  jurisprudence  disappeared  when  the  formula,  together  with 
the  otfice  of  the  Judex  or  Referee,  was  abolished,  and  the  magis- 
trates, under  the  despotic  innovations  of  the  Empire,  disposed 
of  the  entire  litigation  extra  ordinein.    To  this  we  shall  have 
occasion  hereafter  to  advert ;  suffice  it  for  the  present  to  [22] 
say  that  since  the  period  to  which  we  have  referred,  the 
maxim  has  generally  held  good  in  the  English  law,  ad  questioncs 
legis  respondent  ftidices  ;  ad  qiiestiones  fadi  juratores. 

The  quantum  of  damages  being  in  most  cases  intimately 
blended  with  the  questions  of  fact,  must  have  been  from  the 
outset  generally  left  with  the  jury.  It  is  very  certain  that  the 
limits  of  their  power  over  the  amount  of  remuneration  were  not 
at  first  as  clearly  defined  as  they  have  since  become.  In  one 
case,  as  late  as  the  reign  of  James  I.,^  it  is  said  that  "the  jury 
are  chancellors,"  and  that  they  can  give  such  damages  as  "  the 
case  requires  in  equity,"  as  if  they  had  the  absolute  control  of 
the  subject.  So  an  early  text-writer  puts  the  case  of  sheep 
passing  the  Severn,  and  one  of  them  be  forced  into  the  water 
and  all   the  rest  follow  and  be   injured,  and  asks   whether  he 

*  See  Barrington's    Obsei'vations    on    the  origin,  to  his  jurisprudeuce." — Palgrave,  ch. 

Statutes,   p.    109.     "After  verdict   given   of  viii.  vol.  i.  p.  243. 
the  principal  cause,  the  jury  are  asked  touch-         %  Bl.  Com.  bk.  3,  ch.  4,  §  6,  p.  41. 
ing  costs  and  dnmages." — Jacobs'  Law  Diet.         §  Hale's  History  C.  Law,  c.  7;  Sullivan's 

"  Damage."  Lect.,  32,  p.  300  ;  Bl.  Com.,  b.  3,  ch.  4,  §  6. 

+  "  Although  Henry  II.  was  not  in  strictness         !|  Sullivan's   Lectures,    Lect.   32,    p.    296; 

the  inventor  of  that  legal  constitution  which  Hale's  Hist,  of  Com.  Law,  ch.  vii.    vol.  i.   p. 

•succeeded  to  the  Agio-Saxon  policy,  yet  '  Trial  246. 

by  the  Country'  owes  its  stability,  if  not  its         IT  Sir  Baptist   Hixt's  case,  Rolles'  Abr.  ii. 

703 ;  Trial,  pi.  9. 


20  GENERAL    VIEW    OF    THE    SUBJECT.  [cil.    I. 

shall  have  damages  for  all  or  for  one;  hut  the  only  solution  he 
can  find  for  the  dilliculty  is,  that  the  "jury  must  well  consider 
of  it."*  While  on  the  other  hand  the  old  books  are  full  of  cases, 
where,  on  judgment  by  default  and  even  on  demurrer,  the 
courts  themselves  fix  the  amount  of  damages  ;t  ^  and  the  re- 
mains of  this  we  see  in  the  power  still  exercised  by  the  English 
couils  in  cases  Qimarfhem.  Indeed,  for  a  long  time  after  the  dis- 
tinction between  law  and  fact  was  clearly  established,  and  the 
separate  province  of  judge  and  jury  defined  with  considerable 
accuracy,  there  appears  to  have  been  an  almost  total  want  of 
any  clear  and  definite  understanding  of  those  rules  of  damages 
which  we  are  about  to  consider.^ 

Before  commencing  the  more  practical  part  of  this  treatise, 
however,  it  will  be  well  to  bear  distinctly  in  mind  the  general 
principle  which  the  English  law  has  in  view  in  this  matter,  and 
how  in  this  respect  it  differs  from  other  systems  of  jurispru- 
dence. 

[23]  Jewish  Law.  —  We  have  seen  in  the  early  laws  of  the 
Anglo-Saxons,  that  with  the  most  minute  care,  specific 
damages  were  arbitrarily  assessed  in  each  class  of  cases,  without 
reference  to  the  actual  injury  sustained  in  the  particular  case. 
We  find  in  codes  still  more  ancient,  rules  equally  arbitrary  in 
this  respect.  In  the  Jewish  law  (Exodus,  ch.  xxi.  ver.  32)  vari- 
ous provisions  of  a  similar  nature  are  incorporated ;  thus,  "  If  a 
man's  ox  push  (gore)  a  man  servant  or  maid  tervant,  he  shall 
give  unto  their  master  iliirty  shekels  of  silver,  and  the  ox  shall  be 
stoned."  So,  again,  ch.  xxii.  ver.  9 :  "  For  all  manner  of  tres- 
pass, whether  it  be  for  ox,  or  ass,  for  sheep,  for  raiment,  or  for 
any  manner  of  lost  thing  which  another  challengeth  to  be  his, 
the  cause  of  both  parties  shall  come  before  the  judges,  and 
whom  the  judges  shall  condemn,  he  shall  pat/  double  unto  his 
neighbor."  So,  again,  by  a  rough  equity,  ch.  xxi.  ver.  35:  "If 
one  man's  ox  hurt  another's  that  he  die,  then  they  shall  sell  the 
live  ox,  and  divide  the  money  of  it,  and  the  dead  ox  also  shall 
they  divide." 

Hindoo  Law. —  The  same  principle  is  to  be  found  in  the  laws 

*  Shepherd's  E])itome,  p.  70.  J  For  a  very  full  and  able  description  of  the 

t  Holies'  Abr.,  tit.  Damages.     The  Queen's  powers  and  duties  of  court  and  jury  under  our 

Bench  has  still  the  power  to  assess  damages  system,  see  Commonwealth  v.  Porter,  10  Met. 

on    demurrer,  or  default,  without  the   inter-  2G3,  and  many  cases  there  cited. 

veution  of  a  jury.      Whi taker  v.  Harold,  12 

Jur.  395. 


^  See  jjost  598,  et  seq. 


CH.    I.]  THE    ROMAN    LAW.  21 

of  the  Hindoos  :  "  Where  a  claim  is  proved,  the  person  who 
gains  the  suit  is  put  in  possession,  and  the  judge  exacts  a  fine 
of  equal  value  from  the  defendant.  And  if  the  plaintiff  loses 
his  cause,  he  in  the  like  manner  pays  double  the  sum  sued  for." 
And  in  regard  to  torts,  the  same  principle  was  applied.* 

Roman  Law.  —  When  we  come  to  the  Roman  Law,  we  find 
the  subject  elaborately,  but  not  very  clearly  nor  very  harmoni- 
ously treated.  To  understand  its  provisions,  it  is  necessary  to 
bear  in  mind  the  fact  to  which  we  have  already  adverted,  that 
until  the  despotic  centralization  of  the  Empire  had  completely 
subverted  the  early  institutions  of  the  Republic,  the  same  Hne 
was  drawn  in  their  administration  of  justice,  as  with  us,  between 
questions  of  law  and  questions  of  fact.  The  magistrate  who 
heard  the  statements  of  the  parties  did  not  decide  the  cause. 
He  turned  the  litigants  over  to  a  Judex,  or  single  Juror,  or  Ref- 
eree, as  he  may  be  regarded,  giving  him  at  the  same  time  a 
formula  or  charge  by  which  his  decision  was  to  be  controlled. 
This  control  was,  however,  not  an  absolute  one,  and  in  some 
aspects  of  the  cause,  and  particularly  the  extent  of  the  liability 
of  the  defendant,  and  the  Litis  (xstiinatio,  or  Measure  of 
Damages,  the  Judex  seems  to  have  been  clothed  w^ith  a  [24] 
large 'discretion.  This  discretion  was,  however,  restrained 
and  limited  to  a  certain  extent,  by  several  special  statutes.-j* 

The  general  definition  of  damages,  the  id  quod  interest  or  idili' 
tas  of  the  civil  law,  in  the  Code  of  Justinian,  is  the  actual  loss 
sustained  and  the  profit  which  might  have  been  made  —  in  quan- 
tum mca  interfuit,  id  est  quantum  mihi  abest,  qiiantunique  lucrari 
potid.'l  A  more  distinct  subdivision  of  the  subject  is  into  dayn- 
num  emergens  or  loss  arising,  and  lucrum  cessans,  or  profit  pre- 
vented.§  But  how  far  in  each  case  the  party  is  liable,  when 
for  damnum  emergens  only,  when  for  lucrum  cessans,  and  to  what 
extent,  the  texts  of  the  Roman  Law  leave  us  greatly  in  doubt. 
They  inquire  in  each  case  whether  the  party  is  to  be  considered 
guilty  of  dolus,  fraud  or  evil  design,  or  of  cuIjm  only ;  if  of  cutjja, 
whether  culpa  lata,  or  culpa  levis  merely ;  and  the  nice  shades  of 
distinction  which  they  attempt  to  define,  have  at  once  excited 
and  baffled  the  ingenuity  of  modern  commentators.  In  all 
these  questions  the  Judex  appears  to  have  exercised  a  very 
considerable  discretion.!! 

*  Ayeen  Akberry,  by  Gladwin,  vol.  ii.  pp.  of  the  Empire,  —  Das  Eomische  Privat  Rccht 

498,  504.  von  Wilhelm  Reim,  book  5. 

t  See,  as  to  the  three  stages  of  the  Roman  |  Rat.  Rem.  Hab.  Dig.  46,  tit.  viii,  §  13. 

procedure,  —  the  Legis  actiones  ;  the  Formula,  §  Dig.  de  Damno  Inf.  lib.  '26  (39,  2). 

introduced  about  650  A.  v.  c. ;  and  the  forms  1|  Ueber  die  Frage  wie  weit  in  einem  jedcn 


22  GENERAL    VIEW    OF   THE   SUBJECT.  [CH.    I. 

In  the  award  of  compensation,  or  damages,  as  we  term  it,  the 
litis  cesiimaiio,  the  Judex  seems  also  to  have  been  httle  bound  by 
any  settled  rules.  In  cases  of  fraud  or  gross  negligence,  Avhich 
is  as  near  as  we  can  render  dolus  and  culpa  Icda,  the  plaintilf  or 

actor  was  permitted  himself  to  swear  to  the  amount  of 
[25]  injury  sustained;  and  there  seems  origiucally  to  have  been 

no  check  on  this  prerogative,  in  infinitum  jurari  potidt ;  but 
this  license  was  restrained  by  positive  provisions,  which  gave 
the  power  of  assessment  to  the  Judex*  To  check  still  more 
eflectually  the  abuses  which  would  necessarily  flow  from  such 
a  state  of  things,  various  statutory  provisions  were  introduced, 
and  an  effort  was  made  to  obviate  the  difficulty  by  fixed  valua- 
tions not  to  be  departed  from.f 

An  arbitrary  rule  of  a  very  singular  character  was  estab- 
lished by  the  Lex  Aqvdia.%  which  provided  by  its  first  chapter, 
that  in  case  of  the  killing  of  any  slave  or  cattle,  unless  by  mere 
chance,  the  trespasser  should  pay  the  master  as  much  as  the 
property  had  been  worth  at  any  time  within  the  year.  Damni 
iujuricG  actio  comtitidtur  per  legem  Aquiliam  ;  cujus  primo  capite  cau- 
ium  est,  id  si  quis  aliemmi  hominem,  atienamve  qiiadrvpedem,  quce 
jtecudum  mmiero  sit,  injuria  occiderit,  qnanti  ea  res  in  eo  anno  plurimi 
fuerit,  tantum  domino  dare  damnetur.^  So  that  if  a  slave  was 
killed  who  at  the  time  of  his  death  was  a  cripple,  but  within 
the  year  had  been  sound  and  valuable,  his  full  value  as  sound 
was  to  be  paid. 

By  the  third  chapter  of  this  law,  other  kinds  of  intentional  or 
negligent  injury  to  property  were  punished ;  but  in  these  cases, 
the  estimate  of  damages  was  limited  to  the  highest  value  of  the 
thing  injured  within  thirty  days  previous.  Non  quanti  in  eo 
anno,  sed  quanti  in  diehus  triginta  proximis  res  fuerit,  ohligatur  is,  qui 

Falle  das  Interesse  praestirt  wercle,  ist  in  dem  discixssions  on  the  different  sliades  of  fraud 

Romischen  Rechte  wenis  vorhanden,  woraus  and   fault.      Nothing   do    they   less   resemble 

sich   bestimmte   Grundsiitze   al)leiten  licssen.  than   the  clear  and  praclical  manner  of  our 

Doch  geht  die  gewohnliche  Mcinung   dahin,  writers.      The  best  manual  of  the  subject  that 

dass  in  Fallen,  wo  Dolua  odcr  Culpa  lata  oder  I  have  seen,  is  the  work  from  which  the  above 

Contumacia  imignis  die  Ursache  des  Schadens  citation  is  made. 

sey,  sowohl  damrmm  als  lucrum,  hingegen  wo  *  D.  de  in  Lit.  Jur.  1.  4,  §  2  (12,  3)  ;  1.  5,  § 

niir  cine  gewohnliche  culpa  zum  Grunde  liege,  1  cod.     Haenel,  §  95,  ]i.  110. 

bloss  das  damnum  emenjens  vergiitet  werde.  —  t  Rat.  Rem.   Hab.  Dig.  lib.  4G,  tit.  viii.  § 

Haenel,  vom  Schandenersatze,  Leipzig,  1823,  §  13. 

81.     The  books  of  the  German  scholars  are  {  Inst.,  lib.    iv.   tit.  iii.  De  Lege  Aquilia, 

numerous ;   one  of  the  most  recent   is  "  Die  Dig.  lib.  ix.  tit.  ii.  Ad  Legem  Aquiliam.   This 

Culpa  des  TiomischcnRechts,"  von  J.  C.  Hasse,  law  is  said  to  have  been  passed  as  early  as  467 

edited  by  Bethmann  Hohveg,  Bonn  :  1838.  But  A.  u.  c. 

the  writers  of  this  class,  though  profound  §  See,  on  this  subject,  in  the  works  of  Mo- 
scholars  and  acute  reasoners,  a])pear  to  me  to  linasus  (Dumoulin,  ed.  1681,  vol.  iii.  p.  422), 
lose  themselves  in  a  maze  of  contradictory  and  his  "  Tractatus  de  eo  quod  interest."  It  is 
obscure  citations  from  the  vast  store-house  of  frequently  referred  to  by  Pothier,  as  one  of  the 
the  Pandects,  and  in  a  perhaps  still  more  most  valuable  expositions  of  the  civil  law  on 
hopeless   metaphysical    labyrinth   of   abstract  the  measure  of  damages. 


CH.    I.]  THE    MODERN    CIVIL    LAW.  23 

dammmi  dederii.^  The  remedy  given  by  the  Lex  Aquilla  may  be 
considered  as  very  analogous  to  onr  actions  of  trespass  and  case;t 
but  it  was  limited  to  wrongs  actively  perpetrated,  and  mere  acts 
of  nonfeasance  did  not  come  within  its  scope.!  In  consequence, 
other  enactments  were  made  and  the  same  principle  of 
arbitrary  and  fixed  valuation  was  applied  to  matters  of  [26] 
contract  for  sums  certain,§  in  which  cases  it  was  provided 
that  damages  should  not  be  given  beyond  the  double  of  the 
amount  in  question :  hoc  quod  interest  dupli  qiiantiiaiem  mhiime 
exccdere.W 

Civil  Law.  —  The  civil  law,  as  introduced  into  modern 
Europe,  seems  to  have  retained  the  early  features  of  its  original, 
in  the  respect  of  wdiich  we  are  now  speaking,  and  instead  of 
laying  down  any  fixed  or  arbitrary  rule,  to  have  left  the  matter 
very  much  to  the  discretionary  consideration  of  the  tribunal 
which  has  cognizance  of  the  cause.  So,  under  this  system  as 
established  in  France,  and  previous  to  the  adoption  of  the  Code 
Napoleon,  damages  were  divided  into  interest  and  damages, 
interets  and  dommagcs-interets.  Interet  answers  precisely  to  our 
interest,  and  is  the  measure  of  damages  inflicted  for  the  breach 
of  a  mere  pecuniary  obligation,  as  in  the  common  cases  of  bills 
and  notes.  Dommages-inierUs  correspond  with  our  term  dam- 
ages in  its  application  to  all  other  forms  of  action ;  and  in  this 
respect  it  is  that  the  system  appears  loose  and  uncertain.^ 

After  laying  down  the  rule  in  regard  to  interest,  which  as 
with  us  is  limited  to  a  fixed  rate,  Domat  says,**  "  The  other 
kinds  of  damages,  are  undefined,  and  are  increased  or  dimin- 
ished, at  the  discretion  of  the  judge,  according  to  the  facts  and 
circumstances  of  the   particular   case  ;   thus,  in  the  case   of  a 

*  Inst.,  lib.  iv.  tit.  iii.  §  14.  IT  In  addition   to  the  two   heads   of  Inter- 

t  Inst.  lib.  iv.  tit.  iii.  §  9 ;  Brown's  Civil  est  and  Damage,  Domat  makes  a  third,  of 
and  Admiralty  Law,  bk.  iii.  ch.  i.  vol.  ii.  p.  "  Restitution  des  Fruits,"  which  we  shall  con- 
401;  Cooper's  Justinian,  in  notes;  Hugo,  sidcr  under  the  head  of  Mesne  Profits,  it  being 
§  238.  The  provisions  of  the  law  ai'e  very  fairly  a  branch  of  the  great  subject  of  Dam- 
curious,  and  wortliy  of  a  more  careful  exam-  ages. 
ination  than  the  scope  of  this  work  permits.  **  Loix  Civilles,  part  i.  liv.  3,  tit.  v.  vol.  i.  p. 

J  Zuvoderst     waren    alle    Beschadigungen  2.59.  Les  autres  sones  dc  dommages  soiit  inde- 

ausgcschlossen  die  in  einem  blossen  Nichtthun  finis,  et  ils  s'^tendent  on  se  bornent  differem- 

bestehen.  —  Hasse,  Culpa  des  Roinischen  Redds,  mcnt  par  la  prudence  du  juge,  a  plus  on  a  moins 

§  6,  p.  21.  scion  la  qualit^   du   fait  et  des  circonstances. 

§  Code,  lib.  vii.  tit.  46.     De  Sent,  quae  pro  Ainsi,  un  locataire  qui  manque  aux  r^iiara- 

60  quod  int.  prof.  tions  qu'il  doit  par  son  bail,  un  entrepreneur 

II  The  original  of  this  rule  is,  probably,  to  qui  manque  de  fairc  I'ouvrage  qu'il  a  entre- 

bc    found    in    the    Twelve    Tables.       Si   quid  pris,   on  qui  le  fait  mal,  doivent  indefiniment 

endo  deposito   dob  malo  fixcliim   escit,  duplioiie  les  dommages  et  les  inte'rets  qui  peuveut  suivre 

luito.     Si  depositarius  in  re  deposita  dolo  quid  du  d^taut  d'avoir  execute'  leur  engagement;  et 

fecerit,  in  duplum  conde.mneiur .      See  Pothier's  on  les  r^gle  difteremment,   selon  la  diversity 

Pandects,  by  Br(5ard  Neuville,  vol.  i.  pp.  332,  des  pertes  qui  arrivent,  la  qualit<§  des  faits  qui 

364, 366.  les  causent,  et  les  autres  circonstances. 


24  GENERAL    VIEW    OF   THE  'sUBJECT.  [ciI.    I. 

tenant  who  omits   to  make  the  repairs  to  which  he  is  bound 

by  his  lease,  or  of  a  contractor  who  does  not  perform  his 
[27]  contract,  or  performs  it  ill,  —  in  either  case  they  owe  an 

indefmite  amount  of  damages  resulting  from  the  default, 
and  these  damages  are  differently  regulated  according  to  the 
diversity  of  the  losses  which  happen,  the  nature  of  the  facts, 
and  the  attendant  circumstances."  And  he  illustrates  these 
rules  by  one  or  two  cases  as  to  profits  claimed  as  loss,  where  he 
says,  "It  must  be  left  to  the  discretion  of  the  judge  to  arrive  at 
some  measure  of  compensation  according  to  the  circumstances 
and  the  particular  usages,  if  there  are  any."  *  And  again,!  "  It 
results  from  all  the  preceding  rules,  that  as  questions  of  dam- 
ages depend  on  the  attendant  facts"  and  circumstances,  they 
must  be  decided  by  a  sound  discretion,  exercised  as  well  with 
regard  to  the  circumstances  of  the  case  as  to  general  princi- 
ples." 

And  so  says  Pothier  4  "  It  is  necessary  to  exercise  a  certain 
degree  of  moderation  in  estimating  the  amount  of  damages, 
according  to  the  particular  case."  And  again,§  "  Damages  are 
to  be  moderated  where  they  would  otherwise  be  excessive,  by 
leaving  the  computation  to  the  arbitrament  of  the  judge."     So, 

again,l|  "  Where  the  damages  are  considerable  in  amount, 
[28]  they  should  not  be  rigorously  assessed,  but  with  a  certain 

degree  of  moderation."  And  again,  even  in  cases  of 
fraud :  H  "  It  must  be  left  to  the  discretion  of  the  judge,  even  in 
cases  of  fraud,  to  exercise  a  certain  degree  of  indulgence  ni 
fixing  the  amount  of  damages." 

*  p.  262  :  II  doit  dependre  de  la  prudence  apposita  improhatur,  est  ecrite  rians  tons  nos 

du  juge  d'arbitrer  at  de  niod^rer  quelque  de'-  livres  qui  oat  traite  de  la  matiere  —  Dans  la 

dommagement,  selon  les  circonstances  et  les  jurisprudence  on  nes'arrete  jjoint  aces  stipula- 

usages  particuliei's,  s'il  y  en  avoit.  tions  de  peine  —  Les  Dommages-interets  ne 

t  Book  iii.  tit.  v.  sec.  2,  §  13,  vol.  i.  p.  270.  sont   adjugez    que   ad    urhitrium    boni    viri  — 

II    resulte   de   toutes   les    regies    pre'ce'dentes,  suivant  que  le  meritent  les  cas  de  mauvaise 

que   comrae  les   questions   des  dommages   et  foi,  de  la  condition  des  personnes,  de  la  de- 

interets   naissent   toujoui's   des   faits   que   les  pense,  perte,  ou  deslionneur. 

circonstances  diversifient,c' est  par  la  prudence  %   Traite    des    Obi.   part  i.  ch.  ii.   art.   3, 

du  juge  qu'elles  se  decident,  en  joignant  aux  §  160.     U  faut  nieme,  selon  les  difFerens  cas, 

lumi^res  que  les  principes  doivent  donner,  le  apporter  une  certaine  moderation  a  la  taxa- 

discernement  des  circonstances  et  des  egards  tion  et  estimation  des  dommages  dont  le  de- 

qu'on  doit  y  avoir.      I  find  in  an  old  French  biteur  est  tenu. 

work,  1637,  "  Recueil  des  Arrests  Notables,"  §  §  164,  Nous  devons  moderer  les  dom- 
a  curious  illustration  of  the  looseness  of  the  mages  et  interets,  lorsqui'ls  se  trouvent  ex- 
old  French  law,  in  this  respect.  It  says,  En  cessifs,  en  laissant  cette  mode'ration  a  I'arbi- 
estimation  des  Dommages  et  Interets  quand  tragedujuge. 

les  experts  sont  discordans,  le  juge  d'office  doit  ||  Quand    les    dommages    et    interets   sont 

prendre  un   tiers,  et  s'ils   ne   s'accordent,   le  conside'rables,  ils  no  doivent  pas  ctre  taxes  et 

"juge  ne  doit  suivre  ni  la  haute  ny  la  moin-  liquide's   en    rigueur,  mais  avec   une  certaine 

dre  estimation."     So,  again,  in  the  Journal  moderation. 

des  Atidiences,  t.  6,  p.  252,  on  the  question  1[  §   168.  II  doit  ette  laisse'  a  la  prudence 

whether  a  promise  given  by  a  female  to  marry  du  juge,  meme  en  cas  de  dol,  d'user  de  quelque 

under  a  dedit,  or  forfeit  of  a  fixed  sum,  was  to  indulgence  sur  la  taxation  des  dommages  et 

be  regarded  as  liquidated  damages  :    "  La  pro-  inte'rets. 
position  stipulatio  ptenae  in  contractu  sponsalium 


en.    I.]  COMPENSATION.  25 

Merlin  uses  substantially  the  same  language ;  he  says,*  "  It 
is  to  be  observed  that  the  law  of  Justinian,  so  far  as  it  limits 
exorbitant  or  excessive  damages  to  precisely  double  the  value 
of  the  thing  in  controversy,  has  not  the  force  of  law  with  us 
[and  the  Code  has  not  incorporated  it  among  its  provisions]  ; 
but  the  principle  on  which  it  is  founded,  being  one  of  natural 
equity,  should  be  adhered  to,  •  by  moderating  the  damages 
wherever  they  are  too  great,  by  leaving  them  to  the  arbitra- 
ment of  the  judge." 

In  the  various  systems  of  jurisprudence  which  we  have  thus 
cursorily  examined,  we  see  that  the  difficulty  inherent  in  the 
subject  is  sought  to  be  avoided,  either  by  fixing  on  an  arbitrary 
valuation  of  the  loss  sustained  applicable  to  all  cases,  or  by 
leaving  the  whole  matter  largely  to  the  discretion  of  the  tri- 
bunal which  has  cognizance  of  the  subject. 

The  Common  Law.  —  Our  law  differs  very  materially  from  all 
these  systems.  By  it,  in  all  cases  of  civil  injury,  or  breach  of 
contract,-)-  with  the  exception  of  those  cases  of  trespasses  or 
torts,  accompanied  by  oppression,  fraud,  malice,  or  negligence 
so  gross  as  to  raise  a  presumption  of  malice,  where  the  jury 
have  a  discretion  to  award  exemplary  or  vindictive  damages,  — 
in  all  other  cases  the  declared  object  is  to  give  compensaiion  to 
the  party  injured,  for  the  actual  loss  sustained. $  And  the 
amount  of  this  compensation  is  a  question  of  law,  not  governed 
by  any  arbitrary  assessment,  nor,  on  the  other  hand,  left 
to  the  fluctuating  discretion  of  either  judge  or  jury.  By  [29] 
the  general  system  of  our  law,  for  every  invasion  of  right 
there  is  a  remedy,  and  that  remedy  is  compensation.  This  com- 
pensation is  furnished  in  the  damages,  which  are  awarded 
according  to  established  rules;  and  these  rules  form  what  is 
called  the  Measure  of  Damages. 

Rule  of  Compensation.  —  "Wherever,"  says  Blackstone,  "  the 
common  law  gives  a  right,  or  prohibits  an  injury,  it  also  gives 
a  remedy  by  action."  §  "  If  a  statute  gives  a  right,"  said  Lord 
Holt,  "  the  common  law  will  give  a  remedy  to  maintain  that 

*  Repertoire  ;  Dommages  et  Interets,  vol.  8,  moderer  les  dommages    et  interets  lorsqii'ils 

II  faut  observer  que  la  loi  de  Justinien,  en  ce  se  trouvent  excessifs,  en  laissant  cette  mod^ra- 

qn'elle  reduit   pre'cisement   au   double  de   la  tion  a  1' arbitrage  du  juge. 

valeur  de  la  chose  les  dommages  et  interets  t  There  is  a  single  exception  in  regard   to 

exorbitans,  n'a  pas  force  de  loi  paniii  nous  [et  contracts  —  that  of  promise  of  marriage,  which, 

le  Code  Civil  ne  I'a  pas  remise  en  vigueur]  ;  as  we  shall  see,  is  left  largely  to  the  discretion 

mais  le  principe   sur   lequel  elle   est  fonde'e,  of  the  jury. 

etant  un  principe  qui  e'mane  de  I'e'quite  natur-  J  Smith  v.  Sherwood,  2  Texas  E.  460. 

die,  on  doit  s'y  conformer,  et  en  consequence,  §  Com.  HI.  c.  viii.  p.  123. 


26  GENERAL   VIEW    OF   THE   SUBJECT.  [CH.    I. 

right ;  a  fortiori,  where  the  common  law  gives  a  right,  it  gives 
a  remedy  to  assert  it.     This  is  an  injury,  and  every  injury  im- 
ports a  damage."  *     "  It  is  the  pride  of  the  common  hiw,"  says 
the  Supreme  Court  of  New  York,  "  that  wherever  it  recognizes 
or  creates  a  private  right,  it  gives  a  remedy  for  the  willful  viola- 
tion of  it."  t     "Another  species  of  property,"  sa3^s  Blackstone,  J 
"  acquired  and  lost  by  suit  and  judgment  at  law,  is  that  of  dam- 
ages, given  to  a  man  by  a  jury  as  a  compensation  and  satisfaction 
for  some  injury  sustained."      "  Every  one,"  said   Lord  Holt,  § 
"  shall  recover  damages  in  proportion  to  the  prejudice  which  he 
hath  sustained."     "  Damages  —  damna  in  the  common  law,"  says 
Lord  Coke,  ||    "  hath  a    special   signification  for  the  recommence 
that  is  given  by  the  jury  to   the  plaintife,  for  the   wrong  the 
defendant  hath  done   unto  him."     "It  is   a  general  and  very 
sound  rule  of  law,"  said  Sedgwick,  J.,  delivering  the  opinion  of 
the   Supreme  Court  of  Massachusetts,  ^  "  that  where  an  injury 
has  been  sustained,  for  which  the  law  gives  a  remed}^,   that 
remedy  shall  be  commensurate  to  the  injury  sustained."     "  It  is 
a  natural  and  legal  principle,"  said  Shippen,  Chief  Justice  of  the 
Supreme    Court    of    Pennsylvania,**    "  that    the  compensation 
should  be   equivalent  to  the   injury."     "  The   general   rule   of 
law,"  said  Story,  J.,  to  the  jury  on  the  Rhode  Island  cir- 
[30]  cuit,  ft  "is  this:  whoever  does  an  injury  to  another  is  lia- 
ble in  damages  to  the  extent  of  that  injury.     It  matters  not 
whether  the  injury  is  to   the  property,  or  the  person,  or  the 
rights,  or  the  reputation  of  another." 

And  this  compensation  is  awarded,  except  in  those  cases  to 
which  we  have  referred,  according  to  certain  rules  of  law  which 
the  jury  are  not  at  liberty  to  disregard,  and  which  equally  con- 
trol the  conduct  of  the  court.  "  In  cases,"  said  Washington,  J., 
on  the  Pennsylvania  circuit,tt  "  where  a  rule  can  be  discovered, 
the  jury  are  bound  to  adopt  it.  That  rule  is,  that  the  plaintiff 
should  recover  so  much  as  will  repair  the  injury  sustained  by 
the  misconduct  of  the  defendant."  In  regard  to  the  rate  of 
damages  on  a  foreign  bill  of  exchange,  the  New  York  Court  of 
Errors  said,  "  In  this,  as  in  other  cases  of  contract,  the  rule  by 
which  the  amount  or  extent  of  redress  should  be  ascertained,  is 
a  question  of  law."  §§    Thus  it  appears,  that  the  amount  of  com- 

*  Ashby  V.  White,  1  Salk.  19.  Tf  Rockwood  v.  Allen,  Ex'r,  7  Mass.  254. 

t  Yates  V.  Joyce,  11  J.  R.  136.     See  also,  **  Biissy  v.  Donaldson,  4  Dallas,  206. 

Lamb    t7.    Stone,    11  Pick.    527;    Allison    v.  ft  Dexter  y.  Spear,  4  Mason,  115. 

McCune,  15  0hio,  726;  and  Webb  v.  Portland  \\  Walker   v.    Smith,    1    Wash.    C.    C.   R. 

Mannf.  Co.  3  Sum.  192.  152. 

\  Com.  II.  ch.  29.  p.  438.  §§  Graves  v.  Dash,  12  J    R.  17,  and   vidt 

§  Ferrer  v.  Beale,  1  Lord  Raym.  692.  -post,  ch.  vii. 

11  Co.  Litt.  257,  a. 


CH.    I.]  DAMNUM  ABSQUE  INJURIA.  27 

pensation.  or  in  other  words,  the  measure  of  damages  is,  as  a 
general  rule,  matter  of  law  to  be  disposed  of  by  the  court. 

Damnum  absque  injuria.  —  It  is  not,  however,  to  be  under- 
stood that  legal  relief  is  to  be  had  for  every  species  of  loss  that 
individuals  sustain  by  the  acts  of  others.  It  is  undoubtedly 
true  that  damage  resulting  from  fraud,  deceit,  or  malice,  always 
furnishes  a  good  cause  of  action.*  "  This  principle,"  says  the 
Supreme  Court  of  Ohio,  "  is  one  of  natural  justice,  long  recog- 
nized in  the  law."t  But  where  the  injury  is  not  to  be  traced 
to  any  evil  motive,  the  rule  is  by  no  means  universal  that  injury 
is  always  entitled  to  redress.  In  addition  to  the  great  class  of 
moral  rights  and  duties  which  the  law  does  not  attempt  to  pro- 
tect or  enforce,!  there  are  many  sufferings  inflicted  by  human 
agency,  M'^here  the  immediate  instruments  of  the  injury  are  free 
from  fault  or  the  act  beyond  their  control.  In  these  cases 
the  law  does  not  seek  to  interfere.§  It  is  only  legal  injury  [31] 
that  sets  its  machinery  in  operation ;  and  this  is  meant  by 
the  maxim  that  damnum  absque  injuria  gives  no  cause  of  action. j| 
So,  if  in  the  prudent  and  reasonable  exercise,  by  an  owner  of 
property,  of  his  right  of  dominion,  another  sustains  damage, 
it  is  damnum  absque  injuria.^  So  it  has  been  said  in  regard  to  a 
corporation  charged  with  committing  a  nuisance,  "  If  the  de- 
fendants have  only  pursued  the  path  presented  for  them  by  the 
laws  from  which  they  derive  their  existence,  they  have  com- 

*  Pasley  v.  Freeman,  3  T.  R.  51  ;  Upton  v.  desire  to  rivet  in  their  minds,  not  only  the 

Vail,   6   J.  R.    182;     Barney   i'.   Dewey,    13  rnles  but  the  reason  of  our  jurisprndence. 

J.  11.224.  II  Ashby   t?. •  White,  1    Salk.    19;    S.    C.    2 

t  Bartholomew    v.  Bentley,  15  Oliio,  659,  Ld.  Raym.   955;     Lamb  v.    Stone,  11   Pick. 

666.                                            "  527 ;     Broom's     Legal     Maxims,    93.      "  In 

X  Pasley  w.  Freeman,  3  T.  R.  51.  point   of  law,"  said   Rolfc,  B.  in   Davies   v. 

§  Such    are    the    cases    governed     by    the  Jenkins,  11  Mees.  &  Wels.    755,   Avhere  proc- 

maxim,    Salus  populi  suprema   lex.      "  There  ess  had  been  by  mistake  served  on  the  wrong 

are   many   cases,"  says   Mr.   Broom,   in    his  person,  "if  the  proceedings  have  been  adopted 

recent  interesting  and  valuable  work  on  Le-  purely  through  mistake,  though  injury  may 

gal  Maxims,  p.  1,"  in  which  individuals  sus-  have  resulted    to   the   plaintiff,   it  is   damnum 

tain    an   injury  for  which    the  law   gives   no  absque  injuria.,  and  no  action  will  lie."     "  This 

action,   as   where  private    houses  are   pulled  is  one  of  those  unfortunate  cases,"  says  the 

down,  or  bulwarks  raised  on  private  property  same  learned  judge,  in  Winterbottomr.  Wright, 

for  the  preservation  and  defense  of  the  king-  10   Mees.   &   Wels.  109, —  a   suit   by  a  mail 

dom    against    the    king's    enemies."      Such,  coachman  against  a  contractor  for  supply  of 

again,  are  those  which  fall  within  the  maxim  mail  coaches  for  injury  resulting  from  a  coach 

Necessitas  inditcit  privilegium  quoad  jura  privata.  breaking  down,  —  "in  which  there  certainly 

"  As    a    general    rule,"     says    Mr.     Broom,  has  been  damnum,  but  it  is  damnum  absque  m- 

in    his    work    above    cited,    p.    6,    "  the    law  jurid."     So  in  Massachusetts,  where  the  owner 

charges    no    man     with    default    where    the  of  land  made  an  excavation  therein  near  the 

act   done   is  compulsory  and  not  voluntary,  street,  and  a  person  in  the  night-time  fell  in  ; 

and  where  there  is  not  a  careful  selection  on  held,  that  the  owner  was  not  liable.     "  Where 

his  part ;  and,  therefore,  if  either  there  be  an  neither  party  is  in  fault,"  said  the  Supreme 

impossibility  for  a  man  to  do  otherwise,  or  Court,  "and   an  accident   takes   place,   it   is 

so  great  a  perturbation  of  the  judgment  and  damnum  absque   injuria."  —  Hovvland    v.  Vin- 

reason,  as  in  presumption  of  law  man's  nature  cent,  10  Met.  371. 

cannot    overcome,    such    necessity   carries    a  Tf  Gardner  v.  Heartt,  2  Barb.  (N.  Y.)  168 ; 

privilege  in  itself."     I  beg  leave  very  humbly  and  vide  post,  ch.  3. 
to  recommend  Mr.  Broom's  work  to  those  who 


28  GENERAL    VIEW    OF    THE    SUBJECT.  [cil.    I. 

mitted  no  wrongful  act.  Tlioiigli  the  jilaintiff  may  have  sus- 
tained damage,  it  is  damnum  absque  injuria ;  for  the  act  of  the 
law,  like  the  act  of  God,  works  no  wrong  to  any  one."  *  ^ 

There  must,  too,  not  only  be  loss,  but  it  must  be  injuriously 
brought  about  by  a  violation  of  the  legal  rights  of  others.  "  No 
one,  legally  speaking,"  says  the  Supreme  Court  of  New  York, 
"is  injured  or  danniified  nnless  some  7ight  is  infringed.  The 
refusal  or  discontinuance  of  a  favor  gives  no  cause  of  action.!  ^ 
The  prosecution  of  this  inquiry,  however,  would  lead  us  directly 
into  the  great  field  of  causes  of  action.  Suffice  it  for  our 
[32]  present  purposes  to  say  that  whenever  loss  is  coupled 
with  legal  injury,  the  law  gives  compensation. 

Injuria  sine  damno.  —  It  is  further  to  be  borne  in  mind,  that 
if  loss  without  legal  injury  goes  mn'edressed,  the  correlative 
proposition  is  equally  true,  that  the  infringement  of  a  legal 
right,  when  unattended  by  any  positive  injury,  furnishes  no 
ground  for  other  than  nominal  relief  It  is  not  sufficient  that 
an  act  unauthorized  by  law  has  been  committed.  For  Injuria  sine 
damno  there  is  no  compensation.  Substantial  loss  to  the  party 
plaintiff  must  have  ensued  to  entitle  him  to  substantial  relief 
De  minimis  non  curat  lexX^  But  of  this  we  shall  have  occasion  to 
take  notice  again  when  we  come  to  consider  the  subject  of 
nominal  damages. 

Public  Wrongs.  —  To  this  general  principle,  that  where  loss 
and  legal  injury  unite  relief  will  be  given  by  suit,  the  law  rec- 
ognizes one  exception,  that  where  the  wrong  is  on  so  great  a 
scale  that  the  whole  community,  or  a  large  portion  of  them, 
suffer  from  it.  "Here,"  says  Blackstone,  "I  must  premise  that 
the  law  gives  no  private  remedy  for  anything  but  a  private 
wrong."§  And  so  the  law  is  laid  down  by  Lord  Coke,  in  regard 
to  nuisances  on  the  highway :  "  A  man  shall  not  have  an  action 
on  the  case  for  a  nuisance  done  in  the  highway,  for  it  is  a  common 
nuisance,  and  then  it  is  not  reasonable  that  a  particular  person 
should  have  the  action,  for  by  the  same  reason  that  one  person 

*  First  Baptist   Church   v.   Sch'y  &  Troy  ancient  lights,  and  no  light  has  been  acquii-cd 

R.  R.  Co.  5  Barb.  (N.  Y.)  79.  by  grant  or  occupation  and  acquiescence. 

t  Mahan  v.  Brown,   13  Wend.  261,  where  %  Paul  v.  Slason,  22  Verm.  R.  2.31. 

it  was  held  that  an  action  will  not  lie  for  ob-  §  Com.  III.  ch.   13,  p.  219;     IV.  ch.   13, 

structing  a  neighbor's  lights,  if  they  be  not  167  ;  Broom's  Legal  Maxims,  4. 

1  Donovan  v.  The  City  of  New  Orleans,  11  La.  An.  R.  711. 

2  See  Steuart  v.  State  of  Maryland,  20  Md.  97. 

^  See,  however,  Fullam  v.  Stearns,  30  Vt.  443,  post  47. 


CH.    I.]  PARTICULAR     DAMAGE.  29 

might  have  an  action  for  it,  by  the  same  reason  every  one 
might  have  an  action,  and  then  he  would  be  punished  a  hun- 
dred times  for  one  and  the  same  cause."  In  such  case  the 
remedy  is  by  indictment. 

Particular  Damage.  —  But  Coke  goes  on  immediately  to 
make  this  distinction  :  "  But  if  any  particular  person  afterwards, 
by  tlie  nuisance  done,  has  more  particular  damage  than  any 
other,  then  for  that  particular  injury  he  shall  have^  an  action  on 
the  case."*  The  rule  and  the  exception  have  l)oth  been  repeat- 
edly recognized  in  England  and  in  the  courts  of  this  country, 
though  there  has  been  much  controversy  as  to  the  nature  and 
amount  of  the  "  particular  damage  "  that  will  sujDport  the  action. 
It  has  been  held  in  England,  that  an  obstruction  of  a  navigable 
creek,  by  which  the  plaintiff's  vessel  was  arrested  in  her 
course,  was  sufficient  to  maintain  a  suit;"|"  and  where  a  [33] 
corjDoration  bound  to  repair  certain  banks,  mounds,  sea- 
shores, and  piers,  neglected  to  do  so,  in  consequence  of  which 
the  plaintiff's  house  was  injured,  it  was  also  held  that  the  action 
lay.$  So,  again,  where  a  bookseller,  having  a  shop  by  the  side 
of  a  public  thoroughfare,  suftered  loss  in  his  business  in  conse- 
quence of  passengers  having  been  diverted  from  the  thorough- 
fare by  the  defendant's  continuing  an  unauthorized  obstruction 
across  it  for  an  unreasonable  time,  this  was  held  a  sufficient  par- 
ticular damage  to  be  the  foundation  of  an  action.§  The  doc- 
trine of  these  cases  has  been  substantially  adopted  in  this 
country,  as  we  shall  have  occasion  to  see  when  we  come  to  treat 
of  trespasses  to  real  estate.  || 

*  Williams's  case,  5  Rep.  72.  prietors  of  the  Qiiincy  Canal  v.  Newcomb  (7 

t  Rose  V.  Miles,  4  Maule  &  Sel.  101,  which  Met.    276),    it    was    s'aid,  "  that    if   a    party 

virtually  overruled  Hubert  v.  Groves,  1  Esp.  had  suffered  damage  from  the  filling  up  of  a 

R.   148,  and  Paine  v.   Partrich,   Carth.   191  ;  canal    and  want   of  cleansing,   by  means   of 

and   the   doctrine   of  Rose  v.  Miles  was   af-  which   he  was   unable   to  enter  it,   it  would 

firmed    in    Greasly  v.    Codling,   2    Ring.    R.  have  been  a  damage  suffered  in  common  with 

26.3,  as  to  a  highway.     The  authority  of  Hu-  all   other   members   of    the   communit}',   and 

hert  V.  Groves   has   also   been   denied  in  this  therefore  redress  must  be  sought  by  a  public 

country.     Lansing  v.  Wiswall,  5  Denio,  213.  prosecution.     Where  one  suffers  in  common 

X  The  Mayor  and  Burgesses  of  Lyme  Regis  with  all  the  public,  although  from  his  prox- 

V.  Henly,  1  Bing.  N.  C.  222.  imity   to    the   obstructed  way,   or  otherwise, 

§  Wilkes  V.  Hungerford  Market  Company,  from  his  more  frequent  occasion  to  use  it  he 

2  Bing.  N.  C.  281,  where  the  authority  of  may  suffer  in   a  greater   degree  than  others, 

Hubert  v.  Groves  was  again  denied.  still    he   cannot   have   an   action,    because  it 

II  Pierce  v.   Dart,  7  Cowen  R.  609  ;    Lan-  would  cause  such  multiplicity  of  suits  as  to 

sing  V.  Smith,  8  Cowen,  146  ;  S.  C.  4  Wend,  be  itself  an  intolerable  evil.     But  when   he 

9;  Mills  i;.  Hall,  9  Wend.  31.5;    The  Mayor,  sustains  a  special   damage  differing  in  kind 

&c.  V.  Furze,  3  Hill,  612,  and  Myers  v.  Mai-  from    that  which   is   common    to   others,   as 

colm,  6  Hill,  292  ;    Hay  w.  CohoesCo.  3  Barb,  where  he  falls  into  a  ditch  unlawfully  made 

S.  C.  (N.  Y.)  42  ;  Lansing  v.  Wiswall,  5  Denio,  in  a  highway,  and  hurts  his  horse,  or  sustains 

213  ;  First  Baptist  Church  v.  Sch'y  &  Troy  a  personal   damage,   then   he  may  bring  his 

R.  R.  Co.  5  Barb.  S.  C.  (N.  Y.)  79  ;  Baxter  v.  action." 

Winooski  Turnpike    Co.   22    Vermont,  114;         In  Pennsylvania,  the  rule  has  been  applied 

Stctsoti  V.  Faxon,  19  Pick.  147.     In  the  Pro-  to  an  obstruction  in  the  Big  Schuylkill,  which 


30  GENERAL    VIEW    OF   THE    SUBJECT.  [cH.    I. 

[34]  We  shall  be  obliged  to  make  a  more  minute  examina- 
tion of  this  subject  when  we  come  to  speak  particularly  of 
the  subject  of  Nuisances;*  but  we  should  not  omit  to  notice 
here  that  in  cases  like  these,  in  which  the  right  to  relief  depends 
upon  the  amount  of  injury,  we  may  be  said  to  approach  a 
vanishing  point,  where  all  distinctions  between  the  cause  of 
action  and  the  rule  of  compensation  are  confounded  and  lost. 

Composition  of  Offenses.  —  It  is  proper  here  to  call  attention 
to  the  distinction  maintained  between  those  cases  of  a  criminal 
character  which  can  be  compromised  by  the  parties  themselves, 
and  those  in  which  no  such  private  interference  is  permitted. 
It  was  early  held,  that  a  contract  to  withdraw  a  prosecution  for 
perjury  is  founded  on  an  unlawful  consideration  and  void.  If  • 
the  party  charged  were  innocent,  the  law  was  abused  for  the 
purpose  of  extortion;  if  guilty,  it  was  eluded  by  a  corrupt  com- 
promise, screening  the  criminal  for  a  bribe.f  The  subject  has 
been  much  considered  in  subsequent  cases  ;  and  it  seems  now 
to  be  well  settled  that /he  right  to  compromise  depends  on  the 
right  to  recover  damages  in  a  civil  action.  '•  The  law  permits  a 
compromise  of  all  offenses,  though  made  the  subject  of  a  crim- 
inal prosecution,  for  which  offenses  the  injured  party  might  sue 
and  recover  damages  in  an  action.  It  is  often  the  only  manner 
in  which  he  can  obtain  redress.  But  if  the  offense  is  of  a  public 
nature  only,  no  agreement  can  be  valid  that  is  founded  on  the 
consideration  of  stifling  a  prosecution  for  it."  Therefore,  al- 
though the  party  injured  may  lawfully  compromise  an  indict- 
ment for  a  common  assault,  yet  an  agreement  to  pay  the  costs 
of  a  prosecution  of  an  assault  on  the  plaintiff"  and  riot,  and  of  an 
action  for  a  wrongful  levy  under  mfi.fa.,  which  agreement  was 
founded  partly  on  compromise  of  the  prosecution,  and  partly  on 
an  undertaking  to  withdraw  the  execution,  is  altogether  invalid 
as  founded  on  an  illegal  consideration.^ 

There  is,  as  has  already  been  said,  a  large  class  of  cases  where 
the  common  law,  in  giving  relief,  loses  sight  of  the  principle  of 

prevented  the  plaintiff 's  rafts  from  descending.  Norwich   &  W.    R.   R.   Co.   17    Conn.    372; 

Hughes  w.    Heiser,    1   Binney,   463.     In  that  and  see  jjosf,  ch.   v.     Tiie  doctrine  is  the  same 

State,  when  a  private  person  suffers  some  ex-  in  regard    to    abatement :       "  The    ordinary 

traordinary   damage    beyond    other    citizens,  remedy  for  a  pubhc  nuisance  is  itself  puljlic, 

by  a  pul)lic  nuisance,  he'  shall  have  a  private  —  that  of  indictment,  —  and  each  individual 

satisfaction    by    action,    even    if    his    special  who  is  only  injured  as  one  of  the  public,  can 

damage  be  merely  consequential.     Pittsburgh  no  more  proceed   to  abate  than  he  can  bring 

V.    Scott,    1    Barr,    Penn.     State,    309.     In  an  action."  —  Mayor  of  Colchester  y.  Brooke, 

Kentucky,   it   has  been  said   that   it  is    not  7  Q.  B.  R.  339,  377. 

enough  that  one  be  turned  out  of  the  way.  *  Post,  ch.  v. 

Barr   v.    Stevens,    1     Bibb    (Kentucky),    292.  t  Collins  y.  Blantern,  2  Wils.  341,  349. 

In    Connecticut,    see    Bigclow    v.    Hartford  J  Keir  v.  Leeman,  6  Q.  B.  R.  308. 
Bridge   Co.    14   Conn.   565;  and  O'Brien  v. 


CH.    I.]  ANALYSIS  OF  COMPENSATION.  31 

compensation,  and  gives  damages  by  way  of  punishment 
for  acts  of  malice,  vexation,  fraud,  or  oppression.  In  these  [35] 
cases  it  has  been  found  difficult  to  set  any  fixed  or  precise 
limits  to  the  discretion  of  the  jury,  or,  in  fact,  to  prescribe  any 
rule  whatever.  In  other  words,  they  are  left  to  what  Dornat, 
speaking  of  the  court,  calls,  as  we  have  seen,  la  prudence  dii 
jtigc,  reserving  only  to  the  bench  the  right  of  control  over  ver- 
dicts which  bear  the  evident  impress  of  prejudice,  passion,  or 
corruption.  But  before  considering  this  branch  of  the  subject 
minutely,  it  is  necessary  to  have  a  more  accurate  idea  of  the 
legal  meaning  of  the  term  compensation. 

What  Constitutes  Compensation.  —  It  has  been  said  that  the 
effect  of  our  law  is  to  give  in  damages  Avhat  it  calls  compensa- 
tion. When,  however,  we  come  to  analyze  this  phrase,  we  shall 
find  its  juridical  interpretation  a  very  restricted  one.  Injury 
resulting  from  the  acts  or  omissions  of  others,  free  from  any 
taint  of  fraud,  malice,  or  willful  wrong,  consists  :  — 

First.  Of  the  actual  pecuniary  loss  dircctlf/  sustained;  as  the 
amount  of  the  note  unpaid  -,  the  value  of  the  property  paid  for, 
but  not  delivered. 

Second.  Of  the  indirect  fecimiary  loss  sustained  in  consequence 
of  the  primary  loss ;  the  profits  that  might  have  been  made  if 
the  contract  had  been  performed,  the  derangement  and  disturb- 
ance produced  by  the  fiiilure  of  others  to  comply  with  their 
engagements,  and  the  consequent  inability  of  those  who  depend 
on  tliem  to  adhere  to  their  own  ;  loss  of  credit;  loss  of  business ; 
insolvency. 

Third.  Of  the  menial  suffering  produced  by  the  act  or  omission 
in  question  ;  vexation  ;  anxiety. 

Fourth.  The  value  of  the  time  consumed  in  establishing  the  con- 
tested right  by  process  of  Jaw,  if  suit  become  necessary. 

Fifth.  The  actual  expenses  incurred  to  obtain  the  same  end  — 
costs  and  counsel  fees. 

To  these  one  further  element  is  to  be  added  in  those  cases 
where  the  aggressor  is  anhnated  by  a  fraudulent,  a  malicious,  or 
an  oppressive  intention,  and  that  is  — 

Sixth.  The  sense  of  wrong  or  insidt,  in  the  sufferer's  breast,  re- 
sulting from  an  act  dictated  by  a  spirit  of  willful  injustice,  or  by 
a  deliberate  intention  to  vex,  degrade,  or  insult.  This  consti- 
tutes the  difference,  and  the  only  difference  between  the  injury 
produced  by  inability  and  that  produced  by  design.  All 
the  other  constituents  are  the  same.  The  pecuniary  loss,  [36] 
direct  and  indirect,  the  anxiety,  the  time  and  expense,  are 


32  GENERAL    VIEW    OF    THE    SUBJECT.  [CH.    I. 

the  same  whether  a  wrong  be  done  through  the  honest  inability, 
the  willful  fraud,  or  the  deliberate  malice  of  the  offending  party. 
But  in  the  two  latter  cases,  the  last  element  is  superadded  ;  a 
sense  of  wroui*-  or  insult  which  does  not  exist  in  the  former* 

All  these  items  must,  therefore  be  taken  into  the  account  in 
any  eflort  to  make  complete  compemalion,  in  the  ordinary  accep- 
tation of  the  word.  But  we  shall  find  that  the  legal  meaning  of 
the  term  is  ver}^  different.  We  shall  find  that  in  cases  of  con- 
tract, as  a  general  rule,  the  law  takes  no  notice  whatever  of  the 
motives  of  the  defaulting  party ;  that  whether  the  engagement 
be  broken  through  inability  or  design,  the  amount  of  remunera- 
tion is  the  same;t  and  that  in  these  cases,  as  well  as  in  those  of 
torts  or  breach  of  duty  of  any  kind,  where  there  is  no  complaint 
of  fraud,  malice,  nor  willful  negligence,  of  all  the  heads  of  loss 
above  enumerated  only  the  first  and  fifth  are  taken  into  con- 
sideration, and  the  latter  but  imperfectly. 

Limits  of  Compensation. —  In  all  cases  growing  out  of  the 
non-performance  of  contracts,  and  in  those  of  infringement  of 
rifirhts,  or  non-performance  of  duties,  created  or  imposed  by  the 
law,  in  which  there  is  no  element  of  fraud,  willful  negligence,  or 
malice,  the  coinpensaiion  recovered  in  damages  consists  solely  of 
the  direct  jjecuniar/j  loss,  which  includes,  in  mere  money  demands, 
interest  for  the  detention  of  the  amount  claimed,  and  the  costs 
of  the  suit  brought  for  the  recovery  of  the  demand.  No  indirect 
loss  is  accounted  for.     No  allowance  is  made  for  the  menial  svffer- 

ing  of  the  party  who  complains  of  the  non-performance 
[37]   of  his  contract,  or  the  infringement  of  his  rights  —  which, 

indeed,  it  may  be  said,  the  law  possesses  no  scale  to 
measure.  This,  however,  is  not  the  reason,  for  as  little  does  it 
take  into  consideration  the  time  actually  consumed,  and  the  fees 
actually  paid  to  counsel  for  the  establishment  of  the  demand  in 
controversy.  In  this  class  of  cases,  the  direct  jyecuniarg  loss,  and 
the  costs  of  the  suit,  are  all  that  the  law  means  when  it  speaks  of 
compensation}     In  fact,  unless   the  word  is  used  in  a   technical 

*  The  Scotch  law  is  the  only  one,  so  far  as  of   the  surgeon's    account,    and    the    person 

I   am   aware,   which   has  endeavored    practi-  heing  kept  from  his  work.     Second,  the  sola- 

cally  to  analyze  the  elements  of  injury.     By  timn,  which  is  peculiarly  within   the  province 

the  jurisprudence  of  Scotland,  in  actions  for  of  the  jury."     So  in  Cameron  v.  Cameron,  2 

personal  torts,  the  damages  are  divided  into  Murr.  232,  "  If  no  damages  are  proved,  you 

special    damages,   the    actual    pecuniary   loss,  cannot  find  them;  but  there   is  a  claim  for 

and   solatium,    solace,   or    recompense   for    the  solatium,  and  you  must  consider  what  evidence 

wounded  feelings.     So  in  Forgie  r.  Hendcr  there  is  of  the  injury  to  tlie  mind  and  feelings." 

son,   1   Murray,   410,  in  assault  and  battery,  t  There   is  a  single  exception  already  no- 

the    Lord    Chief  Commissioner  Adam    said,  ticed,  the  action  for  breach  of  i)romise  of  mar- 

"  There  are,  first,  sjiecial  damages,  consisting  riage,  which-we  shall  consider  hereafter. 

1  "In  general  the  law  considers  the  taxed  costs  as  the  only  damage  which  a  party  sustains 
by  the  defense  of  a  suit  against  him,  and  these  he  recovers  by  the  judgment  in  his  favor," 
Young  V.  Courtney,  13  La.  An.  193.     See  Osborn  v.  Moore,  12  La.  An.  714. 


CII.    I.]  ANALYSIS    OF    COMPENSATION.  33 

sense,  it  is  altogether  inaccurate  to  speak  of  damages  as  result- 
ing in  compensation ;  and  whatever  restricted  meaning  this  term 
may  be  supposed  to  have  technically  acquired,  it  is  at  all  events 
entirely  incorrect  to  say  in  the  language  which  we  have  above 
seen  used  by  various  eminent  judges,  that  '■'■the  remedy  is  commen- 
surate to  the  inJKri/"  ^  This  language  attributes  to  legal  relief  a 
degree  of  perfection  which  it  is  very  far  from  possessing.  "  It 
would  be  going  a  great  way,"  said  Chief  Justice  Marshall,*  "to 
subject  a  debtor,  who  promises  to  pay  a  debt  to  all  the  loss  con- 
sequent on  his  failure  to  fulfill  his  promise.  The  general  policy 
of  the  law  does  not  admit  of  such  strictness;  and  although  in 
morals  a  man  may  justly  charge  himself  as  the  cause  of  any  loss 
occasioned  by  the  breach  of  his  engagement,  yet,  in  the  course 
of  human  affairs,  such  breaches  are  so  often  occasioned  by  events 
which  were  unforeseen,  and  could  not  easily  be  prevented,  that 
interest  is  generally  considered  as  compensation  which  must 
content  the  injured."  "It  has  been  contended,"  said  another 
eminent  judge,  "  that  the  true  measure  of  damages,  in  all  actions 
of  covenant,  is  the  loss  actually  sustained.  But  this  rule  is  laid 
down  too  generally.  In  an  action  of  covenant  for  non-payment 
of  money  on  a  bond  or  mortgage,  no  more  than  the  principal 
and  legal  interest  of  the  debt  can  be  recovered,  although  the 
plaintiff  may  have  suffered  to  a  much  greater  amount  by  the 
default  of  payment."! 

In  regard  to  the  quantum  of  damages,  instead  of  adhering  to 
the  term  compensation,  it  would  be  far  more  accurate  to  say,  in 
the  language  of  Domat,  which  we  have  cited  above,$  "that  the 
object  is  to  discriminate  between  that  portion  of  the  loss  which 
must  be  borne  by  the  offending  party,  and  that  which 
must  be  borne  by  the  sufferer."  The  law,  in  fact,  aims  not  [38] 
at  the  satisfaction,  but  at  a  division  of  the  loss.^ 

*  Short  V.  Skipwith,  1  Brock.  K.   103  and         t  Tilfjhman,  C.  J.,  in  Bender  w.  Fronbcrger, 
115.  4  Dall.  436,  444. 

I  Supra,  p.  4. 

1  See  Graham  v.  Roder,  5  Tex.  141. 

^  This  language  has  been  cpiestioned.  Griffin  v.  Colver,  16  N.  Y.  494;  Allison  v.  Chandler, 
11  Mich.  542.  Perhaps  it  would  be  more  correct  to  say,  not  that  the  law  docs  not  aim  at  the 
satisfaction  of  the  loss,  but  that  in  practice  it  does  not  fully  reach  that  aim.  The  suitor's 
failure  to  get  complete  compensation  is  rather  an  incident  to  the  imperfection  of  human  tri- 
bunals, than  a  consequence  of  the  inadequacy  of  their  ideal  standard.  And  the  difficulty  sug- 
gested by  Domat,  as  will  be  seen  by  reference  to  his  reasoning  and  illustrations  in  support  of 
the  proposition  cited,  but  which  are  too  voluminous  to  quote,  consists  in  the  attempt  to  draw 
the  line  between  what  is  solely  the  consequence  of  the  offender's  fault  (and  for  which  he  must 
answer),  and  what  is  or  may  be  in  part  the  consequence  of  other  circumstances  (and  which  he 
ought  not  therefore  in  justice  to  answer  for).  That  careful  writer  does  not  mean  to  impute  to 
jurisprudence  a  deliberate  intent  to  impose  on  the  injured  party  the  burden  of  any  part  of  the 
consequence  of  the  offender's  wrong.  Still  we  may  l)e  permitted  to  doubt  whether  the  law,  as 
a  practical  science,  should  be  charged  with  endeavoring  to  obtain  what  it  knows  is  beyond  its 
3 


34  GENERAL    VIEW    OF    THE    SUBJECT.  [CH.    I. 

And  it  is  to  be  borne  in  mind,  that  the  same  deficiency  of 
compensation  exists  in  the  case  of  defendants  as  well  as  plain- 
tiffs. If  the  party  who  receives  the  injury  is  obliged  to  bear  his 
proportion  of  the  loss — so,  on  the  other  hand,  the  party  wrong- 
fully charged  recovers  his  costs  only,  and  no  allowance  is  made 
for  his  time,  indirect  loss,  annoyance,  or  counsel  fees.  "  Every 
defendant,"  says  Mr.  Broom,  "  against  whom  an  action  is 
broufdit,  experiences  some  injury  or  inconvenience  beyond  what 
the  costs  will  compensate  him  for."* 

Exception  in  Case  of  Patents.  —  The  only  considerable  ex- 
ception that  can  be  said  to  exist  to  the  general  principle  here 
stated,  is  that  in  regard  to  patents,  where  it  has  been  held,  in 
some  cases  in  the  tjnited  States,  that  the  plaintiff  may  have 
such  reasonable  damages  beyond  his  taxable  costs  as  shall  vindi- 
cate his  right,  and  reimburse  him  for  all  the  expenditures  neces- 
sarily incurred  in  order  to  establish  his  right,  provided  the  jury, 
in  the  exercise  of  a  sound  discretion,  see  tit  to  give  them.  We 
shall  consider  this  exception  more  fully,  when  we  come  to  treat 
of  the  question  of  the  allowance  of  counsel  fees.f  It  grows  to 
some  extent  out  of  the  language  of  the  Patent  Act. 

Exemplary  Damages.  —  Thus  far  we  have  been  speaking  of 
the  great  class  of  cases  where  no  question  of  fraud,  malice,  gross 
negligence,  or  oppression  intervenes.  Where  either  of  these 
elements  mingle  in  the  controversy,  the  law,  instead  of  adhering 
to  the  system,  or  even  the  language  of  compensation,  adopts  a 
wholly  different  rule.  It  permits  the  jury  to  give  what  it  terms 
punitory,  vindictive,  or  exemplary  damages;  in  other  words, 
blends  together  the  interest  of  society  and  of  the  aggrieved 
individual,  and  gives  damages  not  only  to  recompense  the  suf- 
ferer but  to  punish  the  offender.  This  rule,  as  we  shall  see 
hereafter  more  at  large,$  seems  settled  in  England,  and  in  the 
general  jurisprudence  of  this  country. 

Other  Limits  of  Compensation.  —  There    are   other  consider- 

*  Broom's  Legal  Maxims,  95  ;  Davies  v.  t  Pierson  v.  Eagle  Screw  Co.  3  Story, 
Jenkins,  11  Mces.  &  Wols.  755,756.  402.     See^ws^,  eh.  iii. 

\  Ch.  xviii. 

reach.  Compensation,  in  its  legal  and  restricted  sense,  is,  as  we  shall  continnnlly  ohserve,  its 
constant  object,  but  strictly  in  that  sense  only.  In  the  language  of  the  author,  in  an  article 
entitled  •'  The  Rule  of  Damages  in  Actions  ex  delicto,"  published  in  the  Law  Re])orter  in 
June,  1847,  "In  the  most  ordinary  case  of  a  suit  on  a  note  of  hand,  the  damages  do  not 
amount  to  compensation.  Who  l)ays  the  counsel  fees  ?  Who  ])ays  for  the  time  of  the  jilain- 
tift'?  Who  pays  for  his  annoyance  and  vexation  ?  The  most  successful  lawsuit  is  too  often  a 
Barmecide  feast."  The  difference  between  the  author  and  the  critics  is,  after  all,  little  more 
than  a  verbal  one.     See  note  1,  p.  39. 


CH.    I.] 


ANALYSIS    OF    COMPENSATION.  35 


ations  as  to  the  limits  or  boundaries  of  compensation,  to 
which  we  shall  be  obliged  hereafter  to  call  the  reader's  [39] 
attention,  under  the  head  of  Recoupment,  which  embraces 
an  interesting  class  of  cases  growing  out  of  equitable  deductions 
to  be  made  from  demands  in  specified  cases ;  to  this  subject,  or 
one  closely  connected  with  it,  I  shall  now  only  very  generally 
advert* 

Suppose  the  case  of  a  plaintiff  who  has  sustained  positive 
injury,  but  whose  loss  has  been  made  good  by  charitable  con- 
tribution:  suppose  a  man  beaten,  and  to  incur  a  surgeon's  bill, 
which  is  paid  for  him  by  some  benevolent  persons,  can  he  still 
recover  au'ainst  the  assailant?  Cases  of  this  kind  have  been 
put  by  eminent  judges,  in  a  manner  which  implied  they  enter- 
tained no  doubt  that  the  charitable  relief  would  be  altogether 
thrown  out  of  view  in  determining  the  legal  rights  of  the  par- 
ties.! And  this  seems  the  general  rule  in  cases  of  tort.  So  in 
an  action  fjr  collision,  it  was  held  in  England  that  the  defend- 
ant, by  whose  negligence  the  injury  was  sustained,  could  claim 
no  deduction  for  the  fact  that  the  plaintiff  had  already  recovered 
a  large  part  of  his  claim  from  the  underwriters.t  So  in  a  case 
of  false  representation,  the  defendant  is  not  allowed  to  defeat 
the  action,  by  showing  that  the  plaintiff  had  obtained  for  the 
property  what  he  had  paid  for  it.§  But,  on  the  other  hand, 
when  we  come  to  consider  the  subject  of  Recoupment  we  shall 
see  that  in  cases  of  contract,  as  a  general  rule,  the  plaintiff  can 
only  recover  to  the  extent  of  his  actual  injury,  and  that  if  that 
injury  has  been  made  good  in  any  way,  such  compensation  goes 
to  reduce  his  claim. || 

Upon  the  whole,  in  review  of  this  branch  of  our  subject,  it 
must  be  considered  inaccurate  to  say,  that  legal  relief  is  com- 
mensurate with  the  injury  sustained,  or  that  the  sole  object  is 
to  furnish  compensation.  In  ordinary  cases  of  contract,  the 
remuneration  must  be  less;  in  cases  of  tort  it  may  be  more.^ 

*  See^josf,  ch.  xvii.  §  Medbary  v.  Watson,  6  Met.  246.      See  to 

t  Tindal,  J.  and  Park,  J.,  Yates  v.  Whyte,  same  point,  Stiles  v.  White,  11  Met.  356. 
4  Bini;.  (N.  C.)  472.  ||  Vide  jjos<,  oil.  xvii. 

t  Y^ites  I'.  Whyte,  4  Bing.  (N.  C.)  472. 

1  But  with  the  sinule  exception  of  those  cases  where  damages  may  be  inflicted  for  the  sake 
of  example  or  punishment,  compensation,  as  legally  understood  or  as  far  as  attainable,  is  always 
in  theory  the  guiding  principle  in  measuring  the  damages  both  for  breaches  of  contract  and  for 
wrongs  ;  although,  as  will  be  repeatedly  shown  in  the  text,  owing  to  the  imperfcctiuii  of  human 
laws  and  tribunals,  as  well  as  to  the  general  inadequacy  of  a  pecuniary  standard,  actual  com- 
pensation precisely  commensurate  with  the  injury,  is  in  practice  seldom,  perhaps  never  ob- 
tained. It  is  true'  tliat  otiier  apparent  exceptions  may  exist.  For  instance  :  one  in  cases  of 
contract  arises  from  the  rule  hereafter  noticed,  that  the  contract  itself  furiiishes  the  nieasure  of 
the  damages.  The  carrying  out  of  an  agreement  would  in  many  cases  give  the  injured  party 
more  than  he  has  lost  by  its  breach.     That  is  to  say,  he  is  to  be  compensated  for  what  he  would 


36  GENERAL   VIEW    OF    THE    SUBJECT.  [CH.    I. 

Arrangement  of  Subject.  —  Having  thus  exhibited  the  gen- 
eral principles  on  which  tlie  hiw  of  this  matter  is  based,  ^ve  shall 
proceed  to  examine  more  minutely  the  amount  of  com- 
[40]  pensation  awarded  in  particular  cases.  In  doing  this, 
very  considerable  difficulty  will  be  found  to  stand  in  the 
w\ay  of  our  elTorts  to  make  any  arrangement  of  the  subject, 
adapted  to  our  system  of  jurisprudence,  and  at  the  same  time 
logical  and  scientihc. 

In  endeavoring  to  apply  the  rule  of  damages  to  the  different 
actions  used  among  us,  one  broad  line  of  distinction  presents 
itself;  that  between  real  and  personal  property,  This  distinc- 
tion, deriving  its  origin  from  the  feudal  sj'stem,  is  so  firmly 
established,  and  our  rules  of  proceeding,  and  even  the  right 
itself,  so  dependent  on  it,  that  in  no  general  consideration  of  our 
law  can  it  be  disregarded. 

I  have,  therefore,  first  treated  of  actions  for  the  recovery  of 
real  property ;  of  suits  to  enforce  remedies  for  the  interruption 
or  diminution  of  its  enjoyment,  and  of  those  upon  contracts 
relating  to  it.  The  first  division  embraces  the  action  of  eject- 
ment, with  its  subsidiary,  trespass  for  mesne  profits  and  dower. 
The  second,  actions  for  trespass  to  lands  ;  including  proceedings 

have  made  under  the  contract,  and  not  merely  for  what  he  has  actually  lost  independently  of  it. 
But  this  advantage  he  is  entitled  to  —  it  is  the  hreach  of  the  contract  whicii  is  to  be  made  good 
to  him.  The  rule  referred  to  is  therefore  an  ancillary,  not  an  exceptional  one  ;  and  compensa- 
tion, although  measured  by  the  contract,  is  still  the  object  of  the  law. 

The  general  theory  of  the  measurement  of  damages  is  thus  very  plain  and  simple ;  and  the 
student  is  at  first  inclined  to  be  surprised  at  the  remark  of  Baron  Wilde,  that  "  this  question 
of  the  measure  of  damages  has  produced  more  difficulty  than  perhaps  any  branch  of  the  law." 
Gee  ?;.  The  Lancashire  and  Yorkshire  Railway,  6  H.  &  N.  211.  The  difficulty  encountered 
by  the  learned  Baron  nevertheless,  it  will  be  seen  on  investigation,  exists  to  a  very  great 
degree  ;  but  it  arises  not  out  of  any  doubt  as  to  the  general  principle  to  be  observed,  but  out  of 
the  further  question,  What  is  compensation  in  a  given  case?  It  is  always  something  future, 
something  to  be  estimated  ;  and  although  the  elements  of  the  problem  may  be  few  and  sim])le, 
they  are  never  entirely  certain,  except  by  the  aid  of  an  arliitrary  rule,  such  as  that  which 
awards  interest  at  a  certain  rate  for  money  due  and  unpaid,  or  on  the  value  of  property  wrongfully 
withheld,  are  often  seriously  complex,  and  are  generally  liable  to  be  affected  by  one  or  more, 
and  sometimes  by  many  contingencies.  So  again,  two  or  more  measures,  both  based  on  the 
principle  of  compensation,  may  be  presented.  Which  shall  be  taken  1  A  man  has  bought  a 
field  or  a  chattel  for  a  certain  jjrice.  The  seller  proves  to  have  no  title,  or  a  defeasible  one  only, 
and  the  purchaser  loses  his  bargain.  The  property,  at  the  time  of  the  vendee's  deprivation  of 
it,  may  be  worth  much  more  than  the  purchase  money  for  various  reasons.  It  may  have  been 
enhanced  in  intrinsic  value  since  the  purchase,  either  accidentally  or  as  the  legitimate  result  of 
causes  detected  by  the  keen  eye  of  the  buyer  at  the  time  of  making  his  bargain  ;  or  it  may  have 
been  actually  employed,  or  contracted  to  be  employed,  either  alone  or  in  combination  with 
other  property,  in  a  manner  more  or  less  or  perhaps  peculiarly  profitable  to  the  ])iirchaser. 
Now  shall  he  recover  the  consideration  money  and  interest,  or  the  intrinsic  value  of  the  prop- 
erty, or  its  special  but  to  him  not  less  actual  value  at  the  time  of  his  deprivation  of  it  1  and  if 
the"  latter  rule  be  adopted,  how  shall  such  value  be  arrived  at  ?  All  these  measures,  it  is 
obvious,  are  alike  based  on  the  idea  of  compensation  ;  and  all  may  coexist,  so  that  any  one  can 
be  applied  —  but  they  are  all  different.  Thus  the  determination  of  the  apparently  simple 
question  of  the  amount  of  compensation  leads  to  the  further  inquiry,  what  damages  sustained 
are  sufficiently  certain  to  be  allowed,  what  advantage,  possibly  or  probabh'  lost,  is  so  remote  or 
so  contingent  a  consequence  of  the  breach  or  default  as  to  be  properly  disregarded,  and  will  be 
found  in  every  part  of  the  great  field  of  our  inquiry  to  open  paths  of  interest  and  intricacy  to 
the  explorer. 


CH.    I.]  FORMS    OF   ACTION.  37 

in  regard  to  nuisances  and  waste.     The   third,  real  covenants 
and  contracts  to  convey  land. 

Forms  of  Action.  —  When  we  approach  the  subject  of  per- 
sonal property,  new  difficulties,  which  grow  out  of  the  foiins  of 
action,  present  themselves  in  the  way  of  any  methodical  arrange- 
ment of  the  subject.  These  forms  have  long  been  firmly  estab- 
lished in  the  law  of  England ;  they  exist  in  most  of  the  States 
of  the  Union,  and  the  rules  of  pleading,  evidence,  and  of  dam- 
ages, have  adapted  themselves  to  their  arbitrary  and  illog- 
ical arrangement.*^     It  is,  therefore,  impossible  to  disre-   [41] 

*  Great  judges  pronounced  tliemsclves  we  feel  that  their  chissification  is  arbitrary  and 
strongly  in  favor  of  maintaining  the  forms  of  otlicrwise  defective.  But  in  this,  as  in  so 
action  :  Lord  Kenyon,  in  Savignac  ik  Rome,  many  other  cases,  we  are  presented  with  a 
6  T.  R.  125 ;  Mr.  J.  Wilson,  in  Israel  v.  choice  of  difficulties.  To  those  who  have 
Douglass,  1  H.  Bl.  243 ;  Eyre,  C.  J.  in  observed  the  inconveniences  which  in  other 
Turner  v.  Hawkins,  B.  &  Pull.  476  ;  Ab-  systems  of  judicature  are  found  to  flow  from 
bott,  C.  J.  in  Orton  v.  Butler,  5  B.  &  Aid.  the  want  of  fixed  forms  of  action,  it  will  be 
654.  See  also,  Chitty's  Pleadings,  vol.  i.  p.  scarcely  doubtful  that  they  are  an  invention 
110,  in  note.  "  Settled  forms  of  actions,"  said  of  real  merit  and  importance.  They  tend 
Tindal,  C.  J.  in  Williams  v.  Holland,  10  most  naturally  to  secure  that  certainty  in  the 
Bing.  118,  "  adapted  to  different  grievances,  right  of  action  itself,  which  is  one  of  the  cliief 
contribute  much  to  the  certain  administration  oi)jects  of  jurisprudence  ;  they  form  a  valuable 
of  justice."  More  valuable  testimony  was  check  to  vagueness  and  prolixity  of  statement, 
borne  to  their  importance  by  the  English  and  in  this  and  other  respects,  they  are  es- 
common-law  commissioners ;  the  great  reforms  sential  to  the  convenient  application  of  the 
effected  by  whom,  bear  witness  that  they  were  rules  of  pleading,  a  system  the  peculiar  ad- 
not  afraid  to  innovate.  They  say.  Third  vantages  of  which  we  have  elsewhere  en- 
Report,  p.  6,  "  We  cannot  persuade  ourselves,  deavored  to  illustrate." 

that  with  respect  to  the  forms  now  in  common  With  all  that  respect  for  the  judgment  of 

use  (except  that  of  ejectment),  any  consider-  these  commissioners,  which  their  reputation  as 

able  change  would  be  expedient.     It  is  not  lawyers,  and  their  still  greater  reputation  as 

that  we  are  insensible  to  certain  imperfections  law-reformers,    is   calculated   to   excite,   it  is 

and  inconveniences  incident  to  these  forms,  for  difficult  to  yield  assent  to  this  reasoning  on 

1  Since  the  last  edition  of  this  book,  the  work  of  simjjlifying  legal  practice  by  wholly  or  sub- 
stantially abolishing  forms  of  action  and  pleading,  has  gone  on  as  predicted  by  the  author. 
The  States  of  California,  Indiana,  Missouri,  Ohio,  Iowa,  Minnesota,  Wisconsin,  Oregon,  Kansas, 
Kentucky,  and  Alabama,  have  adopted  codes  or  passed  statutes  eif'eeting  this  change.  Not  so 
much  because  "  revolutions  never  go  backwards,"  as  because  the  present  one  keeps  pace  only 
with  a  corresponding  progress  in  the  minds  of  the  profession,  and  because  it  is  essentially  wise 
and  just,  we  think  these  forms  are  destined,  wherever  the  common  law  prevails,  to  give  place 
to  a  simple,  uniform,  and  comprehensive  mode  of  seeking  and  obtaining  legal  redress.  The 
author's  premature  death  would  have  prevented  his  recasting  the  work  in  conformity  with  this 
great  change,  as  contemplated  in  his  preface  to  the  third  edition,  had  the  time  arrived  ior 
doing  so;  and  as  the  old  forms  are  still  retained  in  a  majority  of  the  States,  it  would  seem 
premature  for  another,  as  well  as  rash  for  a  far  feebler  hand,  to  attempt  the  task.  In  the 
present  edition,  therefore,  the  author's  plan  will  remain  unchanged. 

Without  enlarging  on  the  advantages  of  a  mode  of  statement  intelligible  to  those  out  of  the 
profession,  of  abolishing  formal  fictions  not  designed  to  deceive,  of  making  the  decision  turn 
uniformly  on  the  merits  of  the  suitor's  case  instead  of  sometimes  on  the  pleader's  skill,  and  of 
the  saving  of  that  large  portion  of  time  which,  under  the  old  system,  was  taken  from  the  sub- 
stance of  the  law  to  be  given  to  special  demurrers,  and  other  niceties  of  form,  it  is  manifest 
that  Avhen  the  rule  of  damages  in  one  form  of  action  diffi^^rs  from  that  of  another  on  the  same 
facts,  the  distinction  is  worse  than  useless.  There  should  be,  and  really  can  be,  but  one 
proper  measure  of  damages  for  the  same  injury.  Forms  of  action  obstruct  that  measurement 
of  justice  which  it  is  the  object  of  this  book  to  analyze.  Take  a  few  examples  :  iu  debt  on 
bond  the  damages  are  limited  by  the  penalty,  but  in  the  action  of  covenant  for  the  same 
breach  they  may  exceed  it.  Here  are  two  measures,  but  one  of  which  can  be  right.  Where  a 
recovery  in  trover  for  the  full  value  of  the  thing  is  just,  the  object  can  be  had  by  a  true  state- 
ment of  the  real  cause  of  action  ;  and  where  the  plaintiff  has  a  qualified  interest  only  iu  the 


38                                       GENERAL    VIEW  OF    THE    SUBJECT.                             [CH.    I. 

gard  them.  At  the  snnie  time,  I  have  endeavored  to  adopt  an 
order  somewhat  dillerent  and  more  reasonable  than  that  uhich 
they  suggest. 

the  forms  of  action.     Two  similar  contracts  woiilrl  exist,  if  not  fostered  hy  the  pernicious 

are  made  ;  one  is  sealed  and  the  other  not.    It  system   of  taxinj;   costs   by   the   folio.      Our 

is  evident  that  the  ri;:ht  to  relief,  or  in  other  chancery  jurisprudence   •well    illustrates    this, 

■words    the   ri<jht   of  action,    is    in    hath    cases  A  hill  in  e<iuity  is  p-ofe  because  it  is  ])aid  for 

precisely  the  same.     How,  then,  does  it  tend  hy  the  tblio.     It  is  not  vajzue  ;  on  the  contrary, 

to  secure  "  certainty  in  that  right  "  to  declare  the  jjrecise  grievance  com])laine(l  of  can  almost 

that  on  the  sealed  instrument  covenant  must  always    he    ascertained    with    infinitely    more 

he  brought,  while  assum])sit  only  will  lie  on  certainty  than  from  a  common  law  declaration, 

the    other  ?     The   rirjht   of  action    against    an  For  after  ail,  the  jirojiosed  ends    are    not    at- 

agent  is  the  same  (provided  fraud  or  malice  do  tained.     What  more  vague  than  a  declaration 

not  intervene),  whether  considered  as  a  breach  in   trover,   or  on  the  moiu'y   counts  (      What 

of  contract  or   a  violation  of  duty;   and  yet  more  prolix  than   a  declaration  in  covenant, 

how  nuinv  judgments  in  such  suits  have  been  with  a  dozen  breaches  and  a  count  for  every 

arrested,  because  a   count  in  assumpsit  was  breach  1     As  to  the  rules  of  ])leading,  the  ex- 

inadvertently  joined  with  one  in  case !      See  jierience  of  the  English  system  is  itself  proof 

Corbett    V.  "  Packington,    6    Barn.    &    Cres.  that  the  forms  of  action  are  in  no  wise  wanted 

268;  and  Lovett  r.  Pell,  22   Wend.  3G9.  As  to    secure    the    logic    of    that    system.     The 

to    "  vagueness    and    prolixity,"    the    iormer  arbitrary  pleadings  for   the  defense  are  there 

will  always   be  checked   by   the   fundamental  entirely    abandoned — the   general    issue   has 

rules  of  evidence,  that  the  jiroofs  must  follow  given  way   to  rational  and  intelligil)le  state- 

the  allegations  ;  and  as  to  the  latter,  it  never  ments  of  "the  real  cause  of  defense.     When  the 


chattel,  it  would  be  obvious,  if  we  were  not  prepossessed  hy  habit,  that  a  form  of  action  which 
is  designed  to  recover  the  whole  value  of  the  thing  is  absurd.  The  rule  of  mitigation  which 
has  then  to  be  resorted  to,  is  essentially  in  conflict  with  the  theory  of  the  action.  Why  should 
a  carrier  be  liable  to  pay  a  certain  sum  for  a  lost  article  if  he  is  sued  ex  contractu,  and  a 
different  one  for  the  same  thing  if  he  is  sued  ex  delicto?  Is  there  either  right  or  reason  in  this  1 
And  why  should  a  set-off  be  avoided  Ijy  suing  in  trover,  if  it  can  be  projierly  interposed  to  the 
same  demand  when  the  action  is  assumpsit  ?  If  a  sheriff  is  sued  by  a  judgment  creditor  for  an 
escape  in  an  action  of  debt,  he  cannot  mitigate  the  recovery  by  showing  the  insolvency  of  the 
debtor  ;  but  if  he  is  sued  in  case  for  damages  for  the  same  escape,  he  can  reduce  it  to  a  nominal 
amount.  A  distinction  so  unreasonable  —  although  hy  reason  of  certain  special  statutory 
provisions  (2  R.  S.  437,  §  63)  it  has  been  maintained  in  New  York  since  the  Code  of 
Procedure  (MeCrcery  v.  Willett,  4  Bosw.  643  ;  Renick  v.  Or,-er,  4  Bosw.  384  ;  Barnes  v. 
Willet,  35  Barb.  514";  Daguerre  r.  Orser,  15  Ab.  113)  —  should  manifestly  be  abolished,  and 
the  equitable  rule  adopted  in  the  latter  class  of  actions  should  be  uniformly  established. 

One  other  consideration  deserves  mention.  A  cardinal  principle  of  good  pleading  under  the 
old  svstem,  notwithstanding  the  allowance  of  certain  understood  fictions,  was  truth.  But  this 
princi])le,  though  it  cannot  be  strictly  enforced  under  any  system,  is  far  more  closely  adhered 
to  by  one  which  requires  facts  to  be  stated  as  facts,  and  not  according  to  what  the  pleader 
conc'eives  or  jn-etends  to  be  their  legal  effect. 

The  objections  of  "vagueness  aiul  jirolixity  "  are  answered  by  the  author  in  the  preceding 
note,  and  we  think  his  answer  is  confirmed  by  the  subsequent  experience  of  the  New  York 
practitioner.  Under  the  present  provisions  for  striking  out  irrelevant  matter  and  sham 
defenses,  curtailing  redundant  pleadings  and  defining  indefinite  ones  (N.  Y.  Code,  §§  152,  160), 
the  new  system,  if  it  does  not  equal  its  venerable  predecessor  in  logical  beauty  as  a  science, 
already,  v\"e  venture  to  believe,  surpasses  it  in  practical  utility.  The  conflict  of  decision  on 
questions  of  practice  under  the  Code  of  Procedure  in  New  York,  cannot  fairly  be  objected  to  it. 
Such  vacillations  were  necessarily  incident  to  the  development  of  a  transition  of  entire  novelty 
and  vast  importance,  in  the  progress  of  which  the  Code  has,  since  its  adoption  in  1848,  been 
amended  to  a  greater  or  less  extent  in  matters  of  detail  by  every  legislature  but  two.  That 
system  is  still  doubtless  imperfect;  but  we  think  few  practitioners,  even  among  those  who  still 
cherish  the  attachment  to  special  pleading  which  springs  from  early  habit,  and  which  is 
confirmed  by  the  sad  retrospect  of  long  and  patient  but  now  useless  labor,  would  favor  a  return 
to  the  fictions  and  verbiage  of  a  system  to  which,  with  all  its  beauty  and  after  it  is  thoroughly 
learned,  the  great  fault  still  belongs  of  too  often  failing  to  dispose  in  the  same  controversy 
of  all  the  questions  and  equities  growing  out  of  one  transaction  between  the  same  parties. 
Wherever  it  does  so  in  the  ease  of  various  issues  of  fact,  it  is  by  innovations  and  amendments, 
such  as  notices  of  special  matter  accompanying  the  i)lea,  or  by  a  judicial  adaptation  of  the 
form  of  the  action  to  the  facts  of  the  case,  which  are  liable  to  all  the  objections  urged  against 
the  new  system.  Nor  from  its  inflexibility  is  it  the  equal  of  its  successor  as  a  means  of  exact 
[justice. 


CH.    I.] 


FORMS    OF   ACTION. 


39 


The  thing  called  in  the  common  law  a  form  of  action  is 
strictly  speaking,  a  form  of  words  made  requisite  to  assert  a  right 
of  action.     Thus,  if  the  j)laintiff  held  the  mere  tvritten  promise  of 


forms  of  pleas  are  abandoned,  why  should  the 
forms  of  declamtiom  be  retained  ^  If  the 
general  issue  is  not  essential  to  the  rules  of 
pleadinp:,  why  are  the  forms  of  debt  or  trover"? 
In  fact,  the  forms  of  action  are,  in  my  bumble 
judgment,  the  frreatest  barrier  to  the  proper 
application  of  tlie  best  ])art  of  the  science  of 
pieadinu',  that  which  is  directed  to  the  single- 
ness and  certainty  of  the  issue.  In  regard  to 
the  rules  of  damage,  the  results  of  the  system 
are  eminently  illogical  ;  thus,  for  instance, 
take  the  case  of  a  tortious  removal,  conversion, 
and  sale  of  ]iersonal  property  —  the  plaintitf 
has  three  distinct  remedies,  and  in  each  the 
rule  of  damages  is  different.  If  he  adopt 
assumpsit,  on  the  count  for  money  had  and 
received,  he  can  only  recover  the  amount  of 
the  actual  proceeds  of  the  property.  If  trover, 
he  will  be  allowed  the  highest  value  at  any 
time  before  trial ;  and  if  trespass,  he  can  have 
vindictive  damages  for  the  wrong.  —  Green- 
leaf's  Evidence,  vol.  ii.  ■p.  218.  Vide  post,  ch. 
xix.  Trover. 

It  seems  to  me  very  plain,  from  the  course 
of  legal  reform  both  in  England  and  in  this 
country,  that  we  are  rajiidly  tending  towards 
the  abolition  of  all  arbitrary  forms  of  action. 
Thus,  in  Massachusetts,  by  the  pi'ovisions  of 
a  statute,  1836,  ch.  27.3,  §  3,  the  court  has 
power  to  amend  the  plaintiff's  proceedings,  by 
giving  him  leave  to  change  his  form  of  action. 
—  Wiley  V.  Yale,  1  Met.  .553.  What  is 
this,  however,  but  to  leave  the  trap  set  for  the 
unwary,  to  be  opened  or  not,  according  to  the 
discretion  of  the  tribunal.  And  no  one  who 
ever  has  had  bis  rights  dependent  on  discre- 
tionaiy  power,  will  forget  Lord  Camden's 
glowing  words  :  "  Discretion  is  the  law  of 
tyrants  ;  it  is  always  unknown  ;  it  is  different 
in  different  men  ;  it  is  casual,  and  depends  on 
constitution,  temper,  and  jjassion.  In  the 
best  it  is  oftentimes  caprice ;  in  the  worst, 
every  vice,  folly,  and  passion,  to  which,  human 
nature  is  liable."  —  Argument  in  Hindson  v. 
Kersey. 

But  the  controversy  is  as  old  as  the  time  of 
Cicero ;  no  lawyer  can  be  ignorant  of  the 
ridicule  witb  which,  in  his  oration  for  Murena, 
he  overwhelms  the  verbiage  and  formulas  of 
that  day  :  Hoc  Jieri  bellissime  posset ;  Fundus 
Siliinus  mens  est  ;  inwio  meus  ;  deinde  judicium  : 
noluerunt.  —  Naui  cum  perinidfa  proEcJare  ler/ibus 
essent  constitulu,  ea  jurisconsultorum  im/eniis 
pleraque  corrupla  ac  depravata  sunt  —  /isdem 
ineptiis  fucata  sunt  omnia  —  enunciatis  vestris 
mysteriis  totum  est  contemptum  et  abjectum.  — 
Orat.  pro  Murena. 

Since  the  above  was  published  in  the  first 
edition  of  this  work,  its  ])rognostications  have 
been  justified  in  P>ngland  and  in  at  least  two 
of  the  States  of  the  Union.  In  New  York,  in 
April,  1848,  an  act  was  passed  entitled,  "  An 
Act    to    simplify   and    abi'idge    the   Practice, 


Pleadings,  and  Proceedings  of  the  Courts  of 
this  State,"  the  preamble  of  which  is  as  fol- 
lows :  "  Whereas,  it  is  expedient  that  the 
present  forms  of  actions  and  ]ileadings  incases 
at  common  law  should  be  abolished,  and  that 
the  distinction  between  legal  and  equitable 
remedies  should  no  longer  continue,  and  that 
a  uniform  course  of  proceeding  in  all  cases 
should  be  established."  And  in  accordance 
with  this  preamble,  the  act  now  known  as  the 
Code  of  Procedure  goes  on,  in  section  69  (62 
of  the  Code  of  1851),  to  enact  that  "  the  dis- 
tinction between  actions  at  law  and  suits  in 
equity,  and  the  forms  of  all  such  actions  and 
suits  heretofore  existing  are  abolished,  and 
there  shall  be  in  this  State  hereafter  but  one 
form  of  action  for  the  enforcement  or  protec- 
tion of  private  rights,  and  the  redress  of  pri- 
vate wrongs,  M'hicli  shall  be  denominated  a 
civil  action."  But  though  the  forms  of  action 
are  abolished,  the  distinction  between  legal 
and  equitable  remedies  still  remains.  Linden 
V.  Hepburn,  3  Sandford,  S.  R.  C.  668.  By  § 
140,  all  the  forms  of  pleading  heretofore  ex- 
isting are  abolished,  and  "  hereafter  the  forms 
of  pleading  in  civil  actions  in  courts  of  record, 
and  the  rules  by  which  the  sufficiency  of  the 
pleadings  is  to  be  determined,  are  those  pre- 
scribed by  this  act."  And  the  Code  then  goes 
on  to  define  the  functions  and  requisites  of  the 
new  pleadings,  the  coin]ilaint,  the  demurrer, 
the  answer,  and  the  rejily.  §  156  provides 
that  every  pleading  in  a  court  of  record  must  be 
subscribed  by  the  party  or  his  attorney  ;  and 
when  any  pleading  is  verified  (by  oath), 
"  every  subsequent  pleading  except  a  demurrer 
must  be  verified."  By  §  168,  every  material 
allegation  of  the  complaint  not  controverted 
by  the  answer  as  ])rescribed  in  §  149,  and 
every  material  allegation  of  new  matter  in  the 
answer  constituting  a  counter-claim  not  con- 
troverted by  the  reply  as  prescribed  in  §  153, 
shall,  for  the  purpose  of  the  action,  be  taken 
as  true.  In  regard  to  the  subject  of  this 
treatise,  the  Code  contains  the  following  pro- 
vision, §  276  (232  of  the  Code  of  1848)  : 
"  Whenever  damages  are  recoverable,  the 
plaintiff  may  claim  and  recover,  if  he  show 
himself  entitled  thereto,  any  rate  of  damages 
which  he  might  have  heretofore  recovered  for 
the  same  cause  of  action."  Under  the  system 
of  the  common  law,  as  I  have  already  said, 
and  as  we  shall  have  frequent  occasion  to  see 
in  the  progress  of  this  work,  the  rule  or 
measure  of  damages  depends  not  only  on  the 
cause,  but  on  the  form  of  action — that  is  to 
sav,  the  same  right  may  be  set  up  in  different 
forms,  and  the  amount  of  recovery  will  be 
dependent  on  the  form  employed.  It  will  be 
necessary  for  the  pleader  to  bear  this  in  mind 
in  setting  out  the  relief  he  seeks  under  the  nevf 
system. 

In  Massachusetts,  too,  an  act  passed  on  the 


40 


GENERAL    VIEW    OF    THE    SUBJECT. 


[CII. 


a  defendant,  it  was  made  necessary  by  the  common  hwv,  in  set- 
ting out  this  cause  of  action  in  a  shape  fit  to  be  considered  by 
the  court,  to  aver  that  the  defaulting  party  "  iindeiiooJc  and  prom- 
ised'' to  pay  and  perform.  If,  however,  the  written  promise  was 
clothed  with  the  sanctity  of  a  seal,  then  it  became  necessary  to 
allege  that  the  defendant  "covenanted"  to  perform,  etc.  And 
if  these  phrases  were  not  used  in  the  instances  where  they  were 
declared  requisite,  the  cause  could  proceed  no  further  till  the 
error  was  amended.  The  expediency  of  these  forms  of  action 
has  been  greatly  discussed  ever  since  the  commencement  of  the 
efficient  legal  reforms  which  do  honor  to  our  century,  and  to 
the  names  of  Bentham,  Romilly,  and  Livingston. 

[42]  Actions  for  Indefinite  Damages.  —  One  distinction  pre- 
sents itself  too  plainly  to  be  overlooked  ;  that  which  sepa- 
rates those  cases  where  the  damages  are  wholly  at  large, 

[43]  and  under  the  control  of  the  tribunal,  from  those  where, 
under  the  name  of  a  jDenalty,  or  of  liquidated  damages, 


23d  May,  1851,  Sess.  Laws  of  1851,  ch.  233 
(R.  S.  1860,  p.  652),  entitled,  "An  Act  to 
amend  some  of  the  Proceedings,  Practice,  and 
Rules  of  Evidence  of  the  Courts  of  this  com- 
monwealth," has  wrouglit  very  material 
changes  in  the  procedure  of  that  State. 
Among  the  most  prominent  sections  of  the  act 
are  the  following  :  §  1.  "  There  shall  he  only 
three  divisions  of  personal  actions.  First,  Ac- 
tions of  Contract,  which  shall  include  those  now 
known  as  actions  of  Assumpsit,  Covenant, 
and  Debt,  except  for  penalties.  Second, 
Actions  of  Tort,  which  shall  include  those  now 
known  as  actions  of  Trespass,  trespass  on  the 
case,  trover,  and  all  actions  for  penalties. 
Third,  Actions  of  Replevin."  §  2  declares, 
among  other  things,  that  no  averment  shall  be 
made  which  the  law  does  not  require  to  be 
proved,  and  that  only  the  substantive  facts 
necessary  to  constitute  the  cause  of  action 
shall  be  stated,  without  unnecessary  verbiage 
and  with  substantial  certainty;  one  count  and 
no  more  to  be  inserted  for  each  cause  of 
action,  but  any  number  of  breaches  may  be 
assigned  in  each  count  ;  and  abolishes  the 
action  of  trover.  §  6.  "  None  of  the  provisions 
herein  contained  shall  be  deemed  to  change 
any  of  the  rules  of  evidence  or  the  measure  of 
damages."  §  20.  "  The  general  issue,  as 
heretofore  used  in  all  actions  except  real  and 
mixed  actions,  is  aliolished,  and  in  place 
thereof  the  defendant  shall  hie  an  answer  to  the 
declaration."  §  22.  The  answer  shall  deny,' in 
clear  and  positive  terms,  every  substantive  fact 
intended  to  be  denied  in  each  count  of  the 
declaration  separately,  "  or  shall  declare  the 
defendant's  ignorance  of  the  fact,  so  that  he 
can  neither  admit  nor  deny,  but  leaves  the 
plaintiff  to  prove  the  same."  §  28.  Provides  for 
a  replica tioa  to  the  answer.    §  36.  Any  sub- 


stantive fact  alleged  with  substantial  precision 
and  certainty,  and  not  denied  in  clear  and 
precise  terms,  shall  be  deemed  to  be  admitted, 
but  no  party  shall  be  recjuired  or  permitted  to 
state  evidence.  §§  98,  99,  100,  101,  and  102, 
provide  for  interrogatories  to  be  administered 
by  either  jdaintiff  or  defendant  to  the  opposite 
party,  to  be  answered  under  oath.  There  are 
other  provisions  in  regard  to  real  and  mixed 
actions  ;  and  a  schedule  of  forms  for  declara- 
tions and  answers  is  attached  to  the  act. 

Thus,  in  two  considerable  States  of  the 
Union  the  common  forms  of  pleading  may  be 
said  to  be  done  away ;  while,  at  the  same  time, 
the  rights  of  jiarties  remain  substantially  as 
they  are  established  and  declared  by  that  body 
of  jurisprudence.  Equitable  relief  is  still  to 
be  given  on  the  settled  principles  of  equity 
law ;  and,  therefore,  we  are  still  obliged  to 
keep  in  mind  and  to  understand  the  funda- 
mental division  between  common  law  and 
equity. 

Nor  do  any  forms  of  action,  nor  the  dis- 
tinction between  law  and  equity,  exist  in 
Louisiana  or  Texas.  In  the  latter  State,  in 
Robbins's  Adm'r  v.  Walters,  2  Texas  R.  130, 
the  court  says,  "  The  common-law  forms  have 
never  been  observed  in  our  courts,  and  with 
us  suits  are  brought  by  petition  and  answer; 
we  recognize  no  distinction  between  law  and 
equity,  and  have  no  such  actions  as  trover  and 
detinue."  —  S.  P.  Carter  et  al.  v.  Wallace,  2 
Texas  R.  206. 

In  England,  too,  forms  of  action  are  com- 
pletely abolished  by  the  Common  Law  Pro- 
cedure Acts  of  30th  June,  1852,  and  of  12th 
August,  1854.  The  Boston  Law  Reporter  for 
February,  1856,  contains  a  summary  of  these 
acts,  written  by  the  author  of  this  work.    . 


CH.    I.]  DIVISION    OF   THE   SUBJECT.  41 

the  p.irtiea  have  endeavored  either  to  fix  the  precise  amount  of 
compensation  for  the  breach  of  contract,  or  at  least  to  define 
some  limit  bej'^ond  which  that  compensation  shall  not  go.  The 
first  class  comprehends  the  great  heads  of  assumpsit  and  covenant, 
so  far  as  neither  liquidated  damages  nor  penalty  are  named  in 
the  contract,  because  in  no  case  of  personal  actions  is  the  rule 
of  damages  affected  by  the  mere  addition  or  omission  of  the 
seal ;  and  includes  suits  on  notes  and  bills  of  exchange,  policies 
of  insurance,  on  contracts  for  the  sale  and  warranty  of  chattels, 
actions  against  common  carriers,  by  surety  against  prin- 
cipal, those  growing  out  of  the  contract  of  agency,  and  [44] 
generally  all  agreements,  whether  under  seal  or  other- 
wise, which  do  not  attempt  to  fix  the  damages  for  their  viola- 
tion. 

A  subordinate  division  of  this  class  includes  those  cases 
where  covenant  (still  without  penalty  or  liquidated  damages), 
must  be  brought,  and  where  assumpsit  will  not  lie,  as  on  charter 
parties,  assignments  of  judgments,  and  other  sealed  instru- 
ments. 

Actions  for  Definite  Damages.  —  The  second  class  com- 
prehends the  cases  coming  under  the  head  of  the  common-law 
actions  of  assumpsit,  debt,  and  covenant,  as  controlled  by  pen- 
alties or  liquidated  damages  stated  in  the  contract.  In  this 
branch  of  the  subject,  I  have  treated  first  of  the  penalty  and  the 
weight  given  to  it  in  fixing  the  measure  of  damages  —  where 
they  fall  short  of  it,  and  where  they  may  exceed  its  amount ; 
and  secondly,  of  those  cases  where  the  agreement  of  the  parties 
is  conclusive  on  the  quantum  of  compensation. 

Torts.  —  This  disposes  of  the  subject  of  actions  arising  upon 
contracts ;  and  the  remainder  of  the  work  treats  of  torts  to  per- 
sons and  personal  property,  the  common-law  actions  of  case, 
trover,  replevin,  and  detinue,  being  included  under  this  head. 
In  this  branch  of  the  subject  are  embraced  the  actions  of  re- 
plevin, suits  against  sheriffs  and  public  officers  for  breach  of  duty, 
and  in  general  all  those  cases  where,  though  the  form  of  the 
action  is  in  tort,  a  precise  measure  of  damages  has  been  adopted, 
or  at  least  approached. 

Different  Actions.  —  It  will  be  seen  that  this  division  is  very 
flir  from  being  altogether  satisfactory.  Assumpsit  and  case 
proper,  assumpsit  and  trover,  are  very  often  coordinate  reme- 
dies.   The  same  is  true  of  debt  and  assumpsit,  debt  and  covenant ; 


42  GENERAL    VIEW    OF    THE    SUBJECT.  [CH.    I. 

trover  and  trespass  may  often  be  brought  indifferently;  and 
the  rule  of  damages,  as  I  shall  have  occasion  to  show  moi-e 
fully  hereafter,  differs  with  the  form  of  action  adopted.  I  still 
hope  that  this  arrangement  will  be  found  at  once  substantially 
convenient  of  reference,  and  adaptisd  to  the  principles  of  the 
matter  before  us.  The  various  heads  of  interest,  when  allowed 
as  damages,  recoupment,  pleading,  practice,  and  evidence,  with 
reference  to  the  subject  of  this  treatise,  and  damages  with 
reference  to  special  statutes,  will  be  found  separately  dis- 
cussed.* w 

[45]  Nominal  Damages.  —  Before  entering,  however,  on  the 
examination  of  the  measure  of  compensation  in  the 
various  cases  above  referred  to,  it  will  be  proper  to  obtain  a 
general  idea  of  the  boundaries  of  this  branch  of  our  jurispru- 
dence, by  investigating  the  rules  which  govern  the  allowance  of 
damages  where  the  injury  done  is  extremely  trifling  or  merely 
nominal ;  and  those  which  deny  relief  for  injury  remotely 
resulting  from  the  principal  illegal  act.  Having  thus  ascertained 
what  damages  are  given  in  cases  where  no  substantial  injury  is 
done,  and  the  general  limitations  imposed  on  the  right  to  relief 
where  actual  loss  has  been  sustained,  we  shall  be  better  able  to 
enter  upon  the  more  minute  inquiry  which  awaits  us.  We  are, 
therefore,  first  to  speak  of  the  subject  of  nominal  damages. 

*  I  have  made  one  exception  to  the  com-  for  fraudulent  representations  on  sales,  have 
plete  separation  of  actions  affecting  real  and  discussed  both  branches  of  the  stibject  to- 
personal  property ;  and  in  treating  of  actions    gethcr. 


CHAPTER    II. 

NOMINAL   DAMAGES. 

Before  proceeding  to  consider  the  measure  of  legal  compen- 
sation in  cases  where  actual  loss  is  sustained,  it  will  be  proper 
to  examine  the  rule  of  Nonmal  Damages  as  contra-distinguished 
from  substantial  Damages. 

We  shall  have  frequent  occasion  hereafter  to  notice  that  the 
common  law,  as  a  general  rule,  only  gives  actual  compensation 
in  cases  of  actual  injury.  The  object  of  the  suit  is  to  obtain 
remuneration  for  loss  actually  sustained.  If  it  appear  that 
though  the  defendant  is  in  fault,  still  that  the  i^laintiff  is  not 
injured,  he  can  have  no  relief  It  is  injuria  sine  damno.  As  far 
back  as  the  Year  Books  it  is  said,  "  If  a  man  forge  a  bond  in  my 
name,  I  can  have  no  action  on  the  case  yet ;  but  if  I  am  sued,  I 
may,  for  the  wrong  and  damage,  though  I  may  avoid  it  by 
plea."*  And  so  Lord  Hobart,  C.  J.,  says,  "  There  must  be  not 
only  a  thing  done  amisse,  but  also  a  damage  either  already  fallen 
upon  the  party,  or  else  inevitable."!  Equity  often  proceeds, 
qm'a  timet,  in  the  exercise  of  her  preventive  powers  to  arrest  the 
threatened  injury,  and  there  were  some  early  and  now  obsolete 
proceedings  of  the  same  character  at  law  ;t  but,  as  a  general 
rule,  it  may  at  present  be  considered  well  settled  that  the  relief 
of  the  common  law  is  only  to  be  obtained  by  those  who  have 
suffered  actual  injury.  This  proposition  is,  however,  sub- 
ject to  the  modification  which  we  shall  now  proceed  to  [47] 
consider  in  relation  to  nominal  damages. 

Wherever  the  breach  of  an  agreement,  or  the  invasion  of  a 
right  is  established,  the  English  law  infers  some  damage  to  the 
plaintiff;  and  if  no  evidence  is  given  of  any  particular  amount 
of  loss,  it  declares  the  right  by  awarding  what  it  terms  nominal 

*  19  H.  6,  44.  before  any  distress  or  vexation.   4.  An  Audita 

t  Waterer  v.  Freeman,  Hobart,  266.  Querela   before   any  execution   issued.     5.    A 

t  "  And  note,"  says  Lord  Coke,  "  that  there  Curia  Claudenda  before  any  defeult  or  molesta- 

be  six  writs  in  law  that  may  be  maintained,  tion.     6.  A   ne   injuste  vexes   before   any   dis- 

quia  timet,  before  any  molestation,  distresse  or  trcsse    or    molestation,    and    these    be    called 

impleading,  as  1.  A  man  may  have  his  writ  of  brevia  anticipatia,  writs  o{  'prewention."  —  Coke, 

mesne  (whereof  Littleton  here  speaks),  before  Lit.   100   a.     Story' s  Equity  Jurisprudence,  §§ 

he  be   distrayned.      2.    A    Warrantia    Cartxe  730  and  825. 
before  he  be   impleaded.    3.  A  ^Monstraverunt 


44  NOMINAL   DAMAGES.  [CH.    II. 

damages,  being  some  very  small  sum,  as  a  farthing,  a  penny,  or 
sixpence —  Ubi  jus,  ibi  remcdium.  "Every  injury,"  said  Lord 
Holt,  "imports  a  damage."'''^  So  again,  in  the  same  case  as 
elsewhere  reported,  his  lordship  said,  — 

"  My  brother  Powell,  indeed,  thinks  that  an  action  upon  the  case  is  not 
maintainable,  because  here  is  no  hurt  or  damage  to  the  plaintiff;  but  surely, 
every  injury  imports  a  damage,  though  it  does  not  cost  the  party  one  farthing, 
and  it  is  impossible  to  prove  the  contrary,  for  a  damage  is  not  merely  pecu- 
niary ;  but  an  injury  imports  a  damage,  where  a  man  is  thereby  hindered  of 
his  rioht.  As  in  an  action  for  slanderous  words,  though  a  man  does  not  lose  a 
penny  by  reason  of  the  speaking  them,  yet  he  shall  have  an  action.  So  if  a 
man  gives  another  a  cuff  on  the  ear,  though  it  cost  him  nothing,  no,  not  so 
much  as  a  little  diachylon,  yet  he  shall  have  his  action,  for  it  is  a  personal 
injury.  So  a  man  shall  have  an  action  against  another  for  riding  over  his 
ground,  though  it  do  him  no  damage,  for  it  is  an  invasion  of  his  property,  and 
the  other  has  no  right  to  come  there."  t  ^ 

"Wherever,"  says  Mr.  Sergeant  Williams,  "any  act  injures 
another's  right,  and  would  be  evidence  in  future  in  fjivor  of  the 
wrong-doer,  an  action  may  be  obtained  for  an  invasion  of  the 
right,  without  proof  of  any  specific  injury."! 

Nominal  Damages  establish  Title.  —  In  regard  to  the  right 
invaded,  a  verdict  and  judgment  for  the  smallest  amount  is  as 
effectual  as  any  sum.  however  large  ;  for  it  establishes  the  fact 
of  the  plaintiff's  title.  And  in  the  common  case  of  trespass  to 
lands,  the  main  object  usually  being  to  determine  the  right,  this 
principle  becomes  very  important.^  In  many  of  these  cases  it 
might  seem  at  first  sight  that  the  maxim  injuria  sine  danino 
applied,  and   that  the  law  would   refuse   redress.     But,  as  has 

*  Ashby  V.  ^Vllite,  1  Salk.  19.  J  1  Saunders,  346  a  ;  Mellor  v.  Spateman. 

t  2  Lord  Raym.  955. 

1  And  where  a  right  has  been  invaded  or  a  covenant  broken,  even  although  the  court  may 
entertain  tlie  belief  there  was  no  actual  damage,  or  may  consider  the  evidence  to  that  effect  to 
preponderate  over  the  proof  of  substantial  damage,  the  Irish  Court  of  Exchequer  in  such  a  case 
refused  to  restrict  the  jury  by  a  direction  to  tind  nominal  damages  only.  Sec  Strong  v.  Kean, 
13  Irish  Law,  93. 

^  The  following  cases  recognize  the  right,  now  well  established,  to  recover  nominal  damages 
for  the  bare  infringement  of  a  right,  or  bi'each  of  contract,  unaccompanied  by  any  actual  dam- 
age :  Hutchinson  v.  Schimmelfelt,  40  Penn.  396 ;  McConnell  v.  Kibbe,  33  111.  175  ;  Burnap  v. 
Wight,  14  111.  301  ;  Shannon  v,  Burr,  1  Hilt.  39  ;  Cowley  v.  Davidson,  10  Minn.  392  ;  Quin  v. 
Moore,  15  N.  Y.  (1  E.  P.  Smith),  432  ;  Hope  v.  Alley,  9  Tex.  394  ;  Bond  v.  Hilton,  2  Jones 
(N.  C.)  L.  II.  149  ;  Ledbetter  v.  Morris,  3  Iltid.  543  ;  Kimel  v.  Kimel,  4  Ibid.  121  ;  White  v. 
Griffin,  Ibid-  139-  See  also  Amoskeag  Manufacturing  Co.  v.  Goodale  46  N.  H.  53  ;  Dorman  v. 
Ames,  12  Minn.  451  ;  Nosotti  v.  Page,  10  C.  B.  R.  643;  S.  C.  2  Eng.  Law  «fc  Eq.  326  ;  with 
which  last  case  compare  Thame  v.  Boast,  12  Q.  B.  li.  808. 

^  Besides  that  wherever  there  is  a  wrong  there  should  be  a  remedy,  this  rule  of  giving  nominal 
damages  for  the  breach  of  a  contract  may  settle  the  question  of  title  or  determine  rights  of  the 
greatest  importance.     Devendorf  v.  Wert,  42  Barb.  (N.  Y.)  227. 


CH.    II.]  NOMINAL   DAMAGES.  45 

been  clearly  said  by  the  Supreme  Court  of  Connecticut,  in  an 
action  for  flowing  lands,  "An  act  which  occasions  no  other 
damage  than  putting  at  hazard  those  rights,  wdiich,  if  the   [48] 
act  were  acquiesced  in,  would  be  lost  by  lapse  of  time,  is  a 
sufficient  ground  of  action."  *  ^ 

So,  again,  it  has  been  said  in  Maine,  speaking  of  the  flowage 
of  lands,  "  Generally,  when  one  encroaches  on  the  inheritance 
of  another,  the  law  gives  a  right  of  action ;  and  even  if  no 
actual  damages  are  Ibund,  the  action  will  be  sustained  and 
nominal  damages  recovered  ;  because,  unless  that  could  be  done, 
the  encroachment  acquiesced  in  might  ripen  into  legal  right,  and 
the  trespasser,  by  a  continuance  of  his  encroachments,  acquire  a 
perfect  title."!  ^ 

So,  in  Pennsjdvania,  in  trespass  for  flowing  lands,  it  Avas  held 
*•'  that  the  law  implies  damage  from  flooding  the  ground  of 
another,  though  it  be  in  the  least  possible  degree,  and  without 
actual  prejudice.  But  where  the  law  implies  the  inj\ny,  it  also 
implies  the  lowest  damage.":j:  In  the  Maine  Circuit,  in  an 
action  on  the  case  for  flowing  Iands,§  Mr.  Justice  Story  also  re- 
cognized the  rule.^ 

Possible  Injury.  —  In  an  early  English  case,  well  known  as  that 
of  The  Tunhridge  Wells  Dipper s,\\  an  action  on  the  case  was 
brought  by  the  plaintiffs,  who  were  dippers  at  Tunbridge  Wells, 
against  the  defendants  for  dipping  without  being  duly  appointed  ; 
and  on  the  subject  of  damage  "  there  was  no  proof  of  the  de- 
fendants' having  received  any  gratuity,  other  than  general  evi- 
dence that  the  employment  of  dipper  is  attended  with  profits 

*  Chapman  v.  Thames  Manufacturing   Co.  §  Whipple   v.    Cumberland  Manufacturing 

13  Conn.  269.  Company,  2   Story,    G61.   See,  also,   Crooker 

t  Hathorne    v.     Stinson,     -3    Fairf.     183;  v.  Eragg,  10  Wentl.  260. 

Seedensparger  f.  Spear,  17  Maine,  123.  ||  Weller  t;.  Baker,  2  Wils.   414,  anno  1769. 

X  Pastorius  v.  Fisher,  1  Rawle,  27  ;  affirmed 
in  Ripka  v.   Sergeant,  7   Watts  &  S.  9. 

1  To  a  like  effect  is  Bassett  v.  The  Salisbury  Manufacturing  Company,  8  Fost.  (N.  H.) 
438. 

2  See,  in  the  same  State,  Munroe  v.  Gates,  48  Me.  463 ;  So,  Graver  v.  Sholl,  42  Penn.  St.  58 ; 
Del.  and  Hudson  Canal  Co.  v.  Torry,  33  Penn.  St.  143.  So  the  obstruction  of  a  highway 
gives  a  i-ight  of  action  to  one  thereby  prevented  from  passing  against  the  person  who  erected 
the  obstruction.     Brown  v.  Watson,  47  Maine,  161. 

'^  So  if  a  mill  owner  turn  into  his  mill-pond  a  stream  which  docs  not  naturally  flow  into  it, 
the  owner  of  the  land  below  the  mill  is  entitled  to  recover  nominal  damages,  without  proof  of 
any  specitic  damage,  because  it  is  an  infringement  of  his  right  which  might,  by  I'epetition,  ripen 
into  an  easement.  Tillotson  v.  Smith,  32  N.  H.  90.  So,  if  an  owner  of  a  mill  cause  the  water 
upon  a  stream  to  be  accumulated  during  the  wet  season,  and  draw  it  off  in  the  summer,  so  as 
to  cause  a  greater  flow  than  iisual,  by  means  of  which  the  banks  of  the  proprietor  below  are 
washed  away,  his  land  drowned,  and  his  grass  depreciated,  it  is  no  impediment  to  an  action  for 
damages  that  the  damage  done  is  small.  Gen-ish  v.  The  New  Market  Manufacturing  Com- 
j)any,  10  Post.  (N.  H.)  478. 

The  rule  in  the  text  was  also  recognized  in  Kimel  v.  Kimel,  4  Jones  (N.  C.)  L.  121. 


46  NOMINAL    DAMAGES.  [ciI.    II. 

which  arise  from  the  vohintary  contribution  of  company  resort- 
ing to  Tunbridge  Wells."  The  Court  of  Common  Pleas,  in 
noticing  the  objection,  said,  "  There  is  a  real  damage  to  the  dip- 
pers in  depriving  them  of  some  gratuity  which  they  would 
otherwise  have  received,  perhaps  more  than  they  miglit  truly 
deserve  for  their  labor  and  pains.  Besides,  an  action  on  the 
case  will  lie  for  a  possibiliii/  of  an  injury  ;  as  for  persuading  A 
not  to  come  and  sell  his  wares  at  the  market  of  B,  the  lord  of 
the  market  may  have  his  action." 

Probable  Injury.  —  So,  again,  subsequently  in  an  action  on  the 
case  for  a  surcharge  of  common,  it  was  held  that  the  plaintiff 
need  not  show  that  he  turned  on  any  cattle  of  his  own  at  the 
time  of  the  surcharge,  but  only  that  he  could  not  have  enjoyed 

his  common  so  beneficially  as  he  might ;  and  Nares,  J.,  com- 
[49]  menting  on  the  Dippers'  case,  said  it  was  there  held  that  a 

"  probable  "  damage  is  a  sufldcient  injury  on  which  to  ground 
an  action.*  And  "  probable "  is,  perhaps,  the  more  correct 
phrase.  An  invasion  of  right  being  shown,  the  law  holds 
injury  to  be  a  probable  result,  and  therefore  gives  judgment 
against  the  wrong-doer.  In  other  words,  it  presumes  some 
damage  to  have  resulted  from  the  wrong.  And  the  principle 
was  adhered  to  by  the  King's  Bench  in  an  action  on  the  case 
for  injuries  to  a  right  of  common,  the  jury  having  found  a  ver- 
dict of  one  farthing,  and  a  motion  to  set  aside  the  verdict  and 
to  enter  a  nonsuit  being  denied. "j* 

But  in  a  suit  brought  by  the  owner  of  a  house  against  a  les- 
see for  opening  a  door  without  leave,  the  premises  not  being  in 
any  way  injured  or  weakened  by  the  opening,  the  court  refused 
to  allow  nominal  damages,  and  remitted  the  case  to  the  jury  to 
say  whether  the  plaintiff's  reversionary  interest  had,  in  point  of 
fact,  been  prejudiced-^  This  case,  however,  does  not  pi-esent 
any  exception  iq  the  general  rule,  for  the  court  evidently  con- 
sidered that  a  verdict  for  nominal  damages  would  have  been 
right  if  there  had  been  any  proof  of  the  plaintiff's  title  being 
affected.  So,  again,  in  the  King's  Bench,  in  an  action  on  the 
case  for  the  fraudulent  imitation  of  the  plaintiff's  trade-marks  ; 
the  jury  having  found  a  verdict,  with  one  farthing  damages,  a 

*  Wells  y.  Watling,2  W.  Black.  1233,  anno  t  Pindar  v.  Wadswortli,  2  East,  154.      We 

1779.     By    this    decision    a    dictum    of  Lord  shall  hereafter  see  that  this  principle  docs  not 

Coke,  in    Robert  Mary's  case,  was  overruled,  apply  in  cases  of  wastes,  find  that  if  the  damages 

9  Co.  113.      "  So,"  says  Lord  Coke,  "  that  if  there  be  purely  nominal,  the   defendant  may 

the  trespass  he  so  small  that  the  commoner  has  enter  judgment.     Harrow  School  v.  Alderton, 

not  any  loss,  but  sutiicient  in  ample  manner  2  Bos.  &  Pul.  86. 

remains  to  liim,  he  shall  not  have  any  action  %  Young  v.  Spencer,  10  B.  &  Cres.  145. 
for  it." 


CH.    II.J  NOMINAL   DAMAGES.  47 

motion  was  made  to  enter  a  nonsuit ;  but  the  rule  was  refused, 
and  Littledale,  J.,  said,  "  The  act  of  the  defendants  was  a  fraud 
against  the  plaintiff;  and  if  it  occasioned  him  no  specific  damage, 
it  was  still,  to  a  certain  e:^tent,  an  injury  to  his  right."*  ^ 

And  in  the  same  court,  in  an  action  on  the  case  brought  by  a 
tenant  against  his  landlord,  for  illegally  distraining  for  more  rent 
than  was  due,  it  appearing  that  the  proceeds  of  the  sale 
were  insufficient  to  satisfy  the  rent  actually  in  arrears,  the  [50] 
jury  found  a  verdict  for  the  plaintiff,  with  one  shilling  dam- 
ages. A  motion  was  made  to  enter  a  nonsuit,  but  it  was  denied, 
and  Denman,  C.  J.,  said,  "  There  was  a  wrongful  act  of  the  de- 
fendant, and  though  by  reason  of  the  value  of  the  goods  taken 
ftilling  short  of  the  actual  rent  due,  no  real  damage  was  sus- 
tained, yet  there  was  a  legal  damage  and  cause  of  action,  for 
which  the  plaintiff  was  entitled  to  a  verdict."!^  This  case  car- 
ries the  principle  of  the  English  law  to  its  extreme  limit ;  for 
so  far  from  the  plaintiff's  having  proved  any  damage,  it  was  con- 
clusively shown  that  he  could  not  have  suffered  any ;  and  on  the 
contrary,  the  defendant  was  the  real  loser. 

Thus,  also,  it  has  been  recently  held  by  the  English  Common 
Pleas  in  an  action  on  the  case  for  deceit  against  the  secretary  of 
an  insurance  company  for  false  representations  as  to  the  man- 
agement and  affairs  of  the  company,  whereby  the  plaintiff  was 
induced  to  effect  an  insurance  with  them,  though  it  did  not 
appear  that  he  had  sustained  any  positive  loss,  that  he  was  en- 
titled to  nominal  damages.^ 

The  principle  has  been  applied  to  the  diversion  of  water- 
courses. It  has  been  long  held  that  the  riparian  proprietor  of 
a  stream  has  a  right  to  the  use  of  its  waters,  but  it  has  been 
doubted  whether  he  could  recover  in  an  action  for  its  diversion 

*  Blofeld  V.  Payne,  4  B.  &  Adol.  410 ;  24  question  came  ixp  on  demiirrcr   to  the  plea, 

E.  C.  L.  R.  87.  that  the  dechiration   alleged   that  the   policy 

t  Taylor  v.  Henniker,  Bart.  12  Ad.  &  Ellis,  was  of  less  value  to  the  plaiiititi"  than  it'  the  re- 

488,  which  overruled  the  cases  of  Avenell  v.  presentations   complained   of  had   been  true, 

Croker,  Moo.  &   M.   172,   and  Wilkinson   v.  and   that   Tindall,    C.   J.,    said,    "  This   case 

Terry,  1   M.  &  Kob.  377.      See  also.  Butts  v.  ranges  itself  within  Pasley  v.  Freeman,  .3  T. 

Edwards,  2  Denio,  164,  where  it  is  said  that  11.   51.  and  Haycraft  v.   Creasy,  2  East.  92, 

in  case  for  illegal  distress,  if  no  actual  damage  and  that  class   of  cases   where  it  was  held, 

is  sustained,  the  plaintiff  could  at  most  but  that  a  false  affirmation  made  by  the  defendant 

recover  nominal  damages.  with  intent  to  defraud  the  plaintiff,  whereby 

X  Pontifex  v.  Bignold,  3  Scott  N.  R.    390.  the  plaintiff  receives  damaije,  is  the  ground  of 

The  text  contains  the  substance  of  the  mar-  an  action  upon   the  case  in  the  nature  of  a 

ginal  note,  but  it  should  be  noticed  that  the  deceit." 

^  Compare  a  peculiar  case,  analogous  to  that  of  the  infringment  of  a  trade-mark.  Marsh  v. 
Billings,  7  Cush.  (Mass.)  322.     Also,  Davis  (;.  Kendall,  2  R.  I.  566. 

-  And  in  a  late  case  in  the  English  Exchequer,  in  an  action  brought  under  the  Statute  of 
IMarlbridge  (52  Hen.  III.  c.  4)  for  excessive  distress,  the  plaintiff  was  held  entitled  to, nominal 
damages  although  he  proved  no  actual  damage.  Chandler  v.  Doulton,  34  L.  J.  ^(N.  S.) 
Exch.  89. 


48  NOMINAL   DAMAGES.  [cil.    II. 

witliout  showing  actual  damage.^  It  is  now,  however,  well  set- 
tled, in  favor  of  the  right ;  and  if  the  infringement  be  estab- 
hshed,  nominal  damages,  at  least,  will  in  all  cases  be  given.*  ^ 

Personal  Actions.  —  The  general  rule  has  been  recog- 
[51]  nized  by  the  Supreme  Court  of  New  York,  in  relation  to 
personal  actions  as  well  as  those  affecting  real  property. 
In  an  action  of  trespass,"]*  Bronson,  J.,  said,  "  If  the  plaintiff 
succeeded  in  showing  an  unlawful  entry  upon  his  lands,  or  that 
his  fences  or  any  portion  of  them  were  improperly  thrown  down 
and  his  fields  exposed,  he  was  entitled  to  a  verdict  for  nominal 
damages  at  the  least.  It  was  not  necessary  for  him  to  prove  a 
simi,  or  that  any  particular  amount  of  damages  had  been  sus- 
tained. Every  unauthorized  entrj^  upon  the  land  of  another  is 
a  trespass,  and  whether  the  owner  suffer  much  or  little,  he  is 
entitled  to  a  verdict  for  some  damages."!  '^ 

So  in  an  action  of  trespass  for  false  imprisonment.§  The  plea 
containing  an  allegation  that  the  trespass  consisted  in  arresting 
the  plaintiff  on  an  execution  on  a  judgment  in  trover,  it  was  re- 
plied that  the  plaintiff  had  obtained  his  discharge  from  impris- 
onment, and  that  the  defendant  had  notice  of  the  discharge, 
to  which  a  demurrer  was  put  in ;  the  court  said,  "  Want 
of  notice  may  indeed  depress  the  damages  to  a  mere  nominal 
sum,  but  is  never  allowed  absolutely  to  excuse  a  trespass ; "  and 
there  was  judgment  for  the  plaintiff 

In  a  recent  case,  where  fraud  was  charged,  the  same  court 
was  equally  explicit.  They  said,  "  Actual  damage  is  not  neces- 
sary to  an  action.     A  violation  of  right,   with   a  possibility  of 

damage,  forms  the  ground  of  an  action Once  establish, 

therefore,  that  in  all  matters  of  pecuniary  dealing,  in  all  matters 
of  contract,  a  man  has  a  legal  right  to  demand  that  his  neighbor 
shall  be  honest,  and  the  consequence  follows,  namely :  if  he  be 

*Bowenw.  Hill,  1  Bing.  (N.C.)  549;  Parker  Texas.     Carter  et  al.  v.   Wallace,  2    Texas, 

V.    GriswoJd,    17    Conn.    288.    Plumleigh    v.  206. 

Dawson,  1  Gihnan,  544.  §  Deyo  v.  Van  Valkcnburgli  et  al.  5  Hill, 

t  Dixon  V.  Clow,  24  Wend.  188.  242. 

}  And  the  sanae  point  has  been  ruled  in 


1  Cory  V.  Silcox,  6  Ind.  39.  But  compare  Burden  v.  The  Mayor,  &c.,  of  Mobile,  21  Ala. 
309.  Also,  M'i:iroy  v.  Golile  (6  Ohio  St.  187),  where  it  is  held  that  the  damage  must  be 
"real,  material,  and  substantial." 

2  Champion  v.  Vincent,  20  Texas,  811  ;  Shannon  v.  Burr,  1  Hilton  (N.  Y.  C.  P.J),  .39; 
Tillotson  V.  Smith,  32  N.  II.  90.  And  so  in  case  of  imlawful  flowage  of  lands,  Anioskeag 
Manufacturing  Co.  v.  Goodale,  46  N.  H.  53. 

**  Even  if  the  result  of  the  trespass  benefits  the  plaintiff,  instead  of  damnifying  him,  he  is 
entitled  to  nominal  damages.  Jewett  v.  Whitney,  43  Me.  242.  Sec  the  jjriuciplc  of  the 
citation  in  the  text  asserted  in  regard  to  a  trespass  upon  a  vessel,  in  White  v.  Griffin,  4  Jones 
(N.  C.)  L.  R.  139. 


CH.    II.]  NOMINAL    DAMAGES.  49 

drawn  into  a  contract  by  fraud,  this  is  an  injnry  actionable  per 
sc.  Indeed,  it  would  not  be  difficult  in  all  such  cases,  to  show 
the  degree  of  actual  damage.  The  time  of  the  injured  party 
has  been  consumed  in  doing  a  vain  thing,  or  one  comparatively 
vain  ;  and  time  is  money.  Fraud  is  odious  to  the  law ;  and 
fraud  in  a  contract  can  hardly  be  conceived  of  without  being 
attended  with  damage  in  fact."  * 

So  in  Connecticut,  in  an  action  of  slander,  for  charging  the 
plaintiff,  a  female,  with  want  of  chastity,  the  judge  directed 
the  jury  "  that  if  they  should  find  that  the  plaintiff  had  [52] 
so  destroyed  her  character  by  her  own  lewd  and  dissolute 
conduct  as  to  have  sustained  no  injury  from  the  words  spoken 
by  the  defendant,  they  might  give  only  nominal  damages  ; "  f 
and  on  review  this  was  held  correct. 

Patents.  —  The  general  principle  has  been  also  laid  down  by 
Mr.  Justice  Story,  in  regard  to  patents.  In  an  action  for  the  in- 
fringement of  a  patent  right  by  making  a  machine,  it  was 
argued  for  the  defendant,  that  no  action  lay  except  for  actual 
damage.  "  But,"  said  Story,  J.,  '•  we  are  of  opinion  that  where 
the  law  gives  an  action  for  a  particular  act,  the  doing  of  that 
act  imports  of  itself  a  damage  to  the  party.  Every  violation 
of  a  right  imports  some  damage  ;  and  if  none  other  be  proved, 
the  law  allows  a  nominal  damage."  X 

Officers.  —  So  it  has  been  held  in  Massachusetts,  in  the  case 
of  a  sheriff  neglecting  to  return  an  execution.  "  The  plaintiff 
is  entitled,"  said  Wilde,  J.,  "  to  nominal  damages  for  the  officer's 
neglect,  in  not  returning  the  execution  till  after  the  return-day. 
No  actual  damages  are  proved,  but  where  there  is  a  neglect  of 
duty,  the  law  presumes  damages."  § 

So  where  the  sheriff  does  not  return  a  Ji.  fa.,  after  being  noti- 
fied to  do  so,  if  the  plaintiff  has  intermeddled  with  the  execu- 
tion of  the  writ  so  as  to  defeat  its  operation,  he  is  still  entitled 
to  nominal  damages.il  ^  We  shall  have  occasion  to  consider 
this  branch  of  the  subject  more  at  large,  when  treating  of 
damages  in  suits  against  sheriffs  and  other  public  officers.^ 

*  Allaire  v.    Whitney,    1    Hill,  484.      See  §   Laflin    v.    Willard,    16    Pick.    64.      See 

Whitney  t'.  Allaire,  4  Denio,  554.  also,  Goodnow  v.  Willard,  5  Met.  517;  and 

t  Flint  V.  Clark,  13  Conn.  361.  S.  P.  Lawrence  v.  Rice,  12  Met.  535. 

%  Whittemore  v.  Cutter,  1  Gall.  429  ;  and  1|  Mickles  v.  Hart,  1  Denio,  548. 

again,  S.  C.  ibid.  483.  *![  Post,  ch.  xxi. 

1  So  in  an  action  for  breach  of  duty  in  the  compromise  by  an  attorney  of  a  suit  contrary  to 
his  client's  express  directions,  although  the  compromise  was  a  reasonable  one  and  made  in 
good  faith,  and  there  was  no  positive  damage.     Fray  v.  Voules,  1  Ellis  &  E.  839. 
4 


50  NOMINAL   DAMAGES.  [cil.    II. 

[53]  But,  in  Vermont,  an  able  effort  has  been  made  to  limit 
nominal  damngcs  strictly  to  cases  where  some  damn<^e  is 
the  probable  residt  of  the  defendant's  act,  or  where  the  act 
would  be  evidence  afterwards  in  favor  of  the  wrong-doer,  or 
where  a  right  is  wantonly  invaded  for  the  purpose  of  injury; 
and  it  is  said,  "  that  no  case  can  be  found  where  damages  have 
been  given  for  a  trespass  to  personal  property,  when  no  unlaw- 
ful intent  or  disturbance  of  a  right  or  possession  is  shown,  and 
wdiere  not  only  all  firohaMe  but  all  possible  damage  is  expressly 
disproved."  *  ^  I  doubt  if  this  doctrine  can  be  sustained  on  the 
authorities ;  but  it  is  founded  in  good  sense  and  correct  notions 
of  justice. 

In  Massachusetts,  though  an  officer  who  takes  a  bail-bond  is 
liable  to  an  action  for  not  returning  it  with  the  writ,  yet  if  he 
deliver  or  offer  to  deliver  it  to  the  plaintiff  in  season  for  him  to 
prosecute  a  scire  facias  against  the  bail,  he  is  liable  for  nominal 
damages  only.f  * 

So  in  New  Hampshire,  when  the  sheriff  attaches  property  on 
mesne  process,  the  return  of  the  attachment  and  receipt  taken 
for  it  should  specify  the  articles  attached  ;  but  neglect  in  this 
respect  will  suljject  the  officer  to  nominal  damages  only,  unless 
special  damage  is  shown,  X 

Contracts.  —  The  rule  that  the  invasion  of  a  right  gives  a 
claim  in  all  cases  to  nominal  damages,  applies  equally  to  mat- 
ters of  contract ;  and  so  it  was  held  by  the  Court  of  King's 
Bench,  in  an  action  brought  against  a  banker,  for  refusing  pay- 
ment of  a  check  although  in  funds,  no  actual  damaare  being;  sus- 
tained.§  ^ 

But  when  the  debt  was  paid,  though  after  maturity,  it  was 
held  to  support  a  plea  that  it  was  paid  in  full  satisfaction  of  debt 

*  Paul  V.  Slason,  22  Verm.  231,    per  Po-  415.     See  also,  Winterbottom  v.  Wright,  10 

land,  J.  Mces.  &  Wels.  109.      See  also,  Rolin  v.  Stew- 

t  Glczen  v.  Rood,  2  Met.  490.  ard  (14  C.  B.  595),  where  actual  damages  were 

X  Bruce  v.  Pettcnpill,  12  N.  H.  R.  341.  given  —  an  important  case. 
§  Marzetti  v.   Williams,  1   Barn.    &  Adol. 


1  Vermont,  however,  no  longer  obstructs  the  general  current  of  decision.  In  Brown  v. 
Richmond,  27  Vt.  583,  it  is  held  that  if,  during  the  pendency  of  an  action  against  an  officer 
for  not  keeping  property  attached  so  that  the  execution  could  be  levied  on  it,  tlic  execution  be 
paid  and  discharged,  the  plaintiff  may  recover  nominal  damages  and  costs,  if  he  had  a  good 
cause  of  action  at  the  commencement  of  the  action.  And  in  the  same  State  it  has  been  lately 
held  that  the  maxim  de  minimis  non  curat  lex,  is  never  applied  to  a  wrongful  invasion  of  prop- 
erty from  which  result  damages  capable  of  estimation  liowever  small.  Pullam  v.  Stearns,  30 
Vt.  443.     But  see  p.  513,  note  1. 

'^  But  see  Lane  v.  Hill,  18  Q.  B.  R.  252.  Wlien  plaintiff  in  a  suit  for  wages  proves  services, 
but  fails  to  prove  their  value,  he  is  entitled  at  least  to  a  nominal  sum.  Owen  v.  O'Reilly,  20  Mo. 
603. 


CII.    II.]  NOMINAL    DAMAGES.  51 

and  damage,  and  the  plaintiff  was  not  allowed  to  recover  either 
interest  or  nominal  damages  *  And  so,  again,  in  assumpsit, 
where  the  defendant,  on  being  applied  to  by  the  plaintiff  for 
pa^'ment  of  interest,  stated  that  he  would  bring  her  some  on  the 
following  Smidai/,  it  was  held  that  though  this  was  an  admission 
that  something  was  due,  still,  as  it  did  not  appear  what  the 
nature  of  the  debt  was,  or  that  it  was  due  to  the  plaintiff  as 
executrix,  or  in  her  own  right,  or  that  it  was  a  debt  for  which 
assumpsit  would  lie,  the  plaintiff  was  not  entitled  to  recover 
even  nominal  damages,  and  a  nonsuit  was  entered.! 

Other  Cases.  —  In  an  action  brought  to  recover  general  aver- 
age, the  jury  being  about  to  pronounce  a  verdict  for  the  de- 
fendant, because  they  could  not  ascertain  any  given  sum  to  be 
the  proportion  due  to  the  plaintiff,  a  nonsuit  was  taken,  and  on 
motion  the  Court  of  Common  Pleas  ordered  a  verdict  to  be  en- 
tered for  the  plaintiff,  with  sixpence  damages.^  ^ 

In  a  recent  cause  in  the  Queen's  Bench,§  the  power  of  [54] 
the  court  over  this  subject  was  much  considered  in  a  man- 
damus case  ;  and  it  was  held  that  the  judge  who  tried  the  cause 
might,  from  his  recollection,  order  a  verdict  to  be  entered  for 
nominal  damages,  though  the  entry  at  the  time  was  only 
"  verdict  for  the  crown." 

American  Recognition  of  the  Principle.  —  The  same  principle, 
in  regard  to  contracts,  as  well  as  invasions  of  right  in  general, 
has  been  recognized  in  this  country.^  So  in  an  action  of  cove- 
nant, the  Supreme  Court  of  New  York  held  that  the  plea  oi  non 
est  factum  admits  a  breach  on  the  part  of  the  defendant,  and 
throws  on  him  the  onus  of  showing  the  contrary,  but  that  such 
admission  only  entitled  the  plaintiff  to  nominal  damages.] |     And 

*  Beaumont  v.  Greathead,  2  C.  B.  494.  |  Feize  v.  Thompson,  1  Taunt.  121. 

t  Green  v.    Davies,    4    B.    &    Crcs.    235  ;  §  Regina  v.  Fall,  1  Queen's  Bench  Reports, 

and  also,  Teal  v.  Auty,  2  Bro.  &  Bin<^.   99.  636.     See  many  cases  cited  by   Sir  J.,  now 

Scd  vide  contra  at  Nisi  Prius,  Dixon  v.  Dever-  Lord  Campbell,  in  his  argument  in  this  cause, 

idge,  2  Car.  &  P.  109.  ||  Goulding  i;.  Hewitt,  2  Hill,  644. 

1  See  Dcvendorf  r.  Wert,  42  Barb.  (N.  Y.)  227:  Hagan  v.  Riley,  13  Gray  (Mass.)  515; 
McCarty  y.  Beach,  10  Cal.  461.     Ante, -p.  47,  n.  2. 

2  But'it  does  not  follow  that  because,  as  it  turns  out,  a  plaintiff  sustains  no  pecuniary  loss 
from  a  substantial  breach  of  contract,  his  recovery  must  be  restricted  to  nominal  damages.  So, 
in  a  late  English  case,  where  the  defendant  was  lessee  of  a  house  under  a  lease  containing  cove- 
nants on  his  part  to  repair,  and  the  plaintiff  was  one  of  the  reversioners  and  lessors,  and  before 
the  end  of  the  lease  the  lessors  verbally  agreed  with  a  third  party  that  he  should  have  a  lease  to 
begin  at  the  end  of  the  defendant's,  he  agreeing  to  jnill  down  the  house  and  rebuild,  and  the 
defeudant  left  the  house  out  of  repair  at  the  end  of  his  lease,  and  the  verbal  agreement  between 
the  plaintilfs  and  the  tliird  party  was  put  in  writing,  and  the  house  pulled  down  .accordingly, 
it  was  held  by  the  English  Common  Pleas  in  an  action  against  the  defendant  on  his  covenant 
to  repair,  that  the  jury  were  not  restricted  to  nominal  damages.  Rawlings  v.  Morgan,  34  L.  J. 
(C.  P.  N.  S.)  185  ;  18  Com.  Bench  (N.  S.)  776  ;  11  Jur.  (N.  S.)  564;  12  L.  T.  (N.  S.)  348. 
But  see  Olmstead  v.  Brush,  27  Conn.  530,  infra. 


52  NOMINAL   DAMAGES.  [CH.    II. 

in  an  action  on  the  common  money  counts,*  the  same  court 
held  that  if  in  assumpsit  an  issue  be  joined  on  a  plea  of  pay- 
ment, and  no  evidence  be  given  at  the  trial  by  either  party,  the 
plaintiff  will  be  entitled  to  a  verdict,  but  such  verdict  will  be  for 
nominal  damages  only.^ 

So  in  Massachusetts,  it  has  been  decided  that  the  omission  of 

an  administrator  to  settle  his  account  with   the  probate   court, 

renders  him  at  all  events  liable  to  nominal  damages.!^     So  in 

the  same  State,  the  damages  in  a  suit  on  the  covenant 

[55]  against  incumbrances  are  merely  nominal,  if  the  plaintiff 

has  paid  nothing  towards  the  incumbrance.t  ^ 

So  in  Maine,  in  a  suit  growing  out  of  an  attachment,  the 
goods  having  been  delivered  to  a  receiptor  and  he  having  foiled 
to  perform  his  duty,  it  was  said  that  if  there  was  a  good  cause 
of  action,  at  the  time  of  the  commencement  of  the  suit,  but  the 
right  of  action  is  lost  by  a  neglect  to  take  the  necessary  steps 
to  preserve  the  attachment,  nominal  damages  may  be  recov- 
ered.§  So  in  the  same  State,  in  an  action  on  a  bond  given  to 
jDrocure  the  release  of  a  debtor  from  arrest,  there  being  no  evi- 
dence of  the  loss  sustained  by  the  plaintiff,  it  was  held  that  the 
execution  could  issue  for  nominal  damages  only.||  ^ 

So  in  Mississippi,  in  an  action  on  a  covenant  to  transfer  to 
the  plaintiff  the  defendant's  title  to  a  slave,  it  was  held  that  the 
measure  of  damages  was  not  the  value  of  the  slave,  but  of  the 
defendant's   title ;   and  that  appearing  to  be  defective,  it  was 

*  The  New  York  Dry  Dock  Co.  v.  M'lu-         |  Tufts  v.  Adams,  8  Pick.  547. 
tosh,  5  Hill,  290.  §  Moulton  v.  Chapin,  28  Maine,  505. 

t  Fay  V.  Haven,  3  Metcalf,  109.  1|  Waldron  v.  Berry,  22  Maine,  486. 

1  And  it  is  held  that  in  an  action  upon  an  instrument  under  seal,  a  court  of  law  will  give 
nominal  damages  only,  where  the  presumption  of  valuable  consideration  is  negatived  by 
something  appearing  on  the  fiice  of  the  paper.     Cox  v.  Sprigg,  6  Md.  274. 

-  In  an  action  of  debt,  brought  upon  the  bond  of  a  guardian  of  a  minor,  and  proseciited  by 
the  ward  after  the  determination  of  the  guardianship,  where  it  appears  that  the  guardian  re- 
ceived property  of  the  ward  and  has  rendered  no  account,  and  has  not  been  required  to  settle 
his  account  in  the  probate  court,  the  prosecutor  is  entitled  to  recover  nominal  damages  and 
no  more.  Probate  Court  v.  Slason,  23  Vt.  306.  In  Connecticut,  in  an  action  on  a  probate 
bond  in  the  name  of  the  judge  of  probate,  nominal  damages  cannot  be  recovered  for  a  technical 
breach  of  the  bond  when  the  party  beneficially  interested  has  suffered  no  loss.  Olmstead  v. 
Brush,  27  Conn.  530.  In  Maryland,  in  an  action  on  a  guardian's  bond  where  no  loss  had  been 
suffered,  but  a  substantial  breach  h.ad  occurred,  it  was  held  that  nominal  damages  were 
recoverable.  State,  Use  of  Murray  v.  Bishop,  24  Md.  310.  Upon  a  covenant  to  an  attorney  to 
pay  hinr  a  reasonable  fee  for  defending  the  defendant  on  a  criminal  charge,  nothing  more  caii 
be  recovered  than  nominal  damages,  unless  it  be  averred  that  he  did  defend,  or  special  damages 
be  alleged  and  admitted  or  proved.     Wilson  r.  Barnes,  13  B.  Monr.  (Ky.)  330. 

2  Nominal  damages  may  be  recovered  in  such  an  action  though  the  incumbrances  are  removed 
before  the  suit  is  brought.  Smith  v.  Jefts,  44  N.  H.  482.  And  generally,  for  the  technical 
breach  of  a  bond  unattended  by  actual  damages,  the  obligee  is  entitled  to  nominal  damages, 
and  no  more.  State  v.  Reinhardt,  31  ]\Io.  95;  Rector,  &.c.,  of  Trinity  Church  v.  Higgins, 
4  Robertson,  N.  Y.  Superior,  1,  372. 

*  So  in  Iowa,  in  an  action  on  a  penal  bond  under  the  Code  of  that  State  (§  1888),  unless 
special  damage  is  averred  and  proved,  nominal  damages  only  can  be  recovered.  Liuder  v.  Lake, 
6  Iowa  (Clarke),  164. 


CII.    II.]  NOMINAL    DA.MAGES.  53 

considered  a  case  for  nominal  damages.*  So  in  Louisiana,  in 
a  suit  against  the  sureties  on  a  sequestration  bond.f 

But  in  a  somewhat  peculiar  case,  in  an  action  of  debt  where 
a  nonsuit  had  been  taken,  although  the  Supreme  Court  of  New 
York  were  satisfied  that  the  verdict  should  have  been  for  the 
plaintiff,  ^'et  as  no  damages  were  shown,  nor  any  mode  of  ai-riv- 
ing  at  any,  the  court  refused  to  set  aside  the  nonsuit  and  grant 
a  new  trial  in  order  to  give  the  plaintiff  an  opportunity  to 
obtain  nominal  damages.t  ^  In  regard  to  the  pecuniary  result, 
the  eflect  of  an  award  of  nominal  damages  depends  on  the  stat- 
utes regulating  costs,  which  are  usually  made  to  depend  on  the 
amount  recovered,  according  to  the  nature  of  the  action  ;  but 
this  branch  of  the  subject  will  be  found  more  particularly  dis- 
cussed in  the  treatises  on  costs. 

Costs.  —  The  importance  of  the  principle  of  nominal  damages 
is  mainly  its  effect  upon  the  costs.^  Thus,  in  Massachusetts,  a 
plaintiff  is  entitled  to  full  costs  in  personal  actions,  in  wliich  the 
title  to  real  estate  may  be  concerned,  if  he  recover  any  sum  less 
than  twenty  dollars.§  Its  practical  results,  therefore,  can  only 
be  understood  by  a  careful  analysis  of  the  statutes  of  costs,  of 
the  details  of  which,  being  matters  of  local  legislation,  this  work 
cannot  properly  treat.^ 

*  Whitehead  v.  Ducke,  11  Smedes  &  Marsh.         J  Brantingham  v.  Fay,  1  J.  Cases,  255. 
98.  §  Kevised  Statutes  of  Mass.  ch.  121,  §§  3  and 

t  CLarke  v.  Scott,  2  La.  Ann.  E.  907.      ,         4.     Ryder  v.  Hathaway,  2  Met.  96. 

1  In  an  action  on  a  contract  to  sell  specific  stock  which,  without  the  owner's  knowledge,  has 
hcen  already  sold  by  his  agent,  it  is  held  in  Pennsylvania  that  the  ijlaintitf  can  recover  uumiual 
damages  only.     AVilson  v.  Whitaker,  49  Penn.  State,  114. 

A  motion  "for  nonsuit  should  be  denied  where  the  plaintiff  is  entitled  to  nominal  damages. 
Quin  V.  ]Moore,  15  N.  Y.  (1  E.  P.  Smith)  R.  432.  But  a  new  trial  will  not  be  granted  to  the 
plaintiff  where,  upon  the  wliole  case  presented,  it  appears  that  he  is  entitled  to  nominal  dam- 
ages only.  Jennings  v.  Loring,  5  Ind.  R.  250;  see  also,  Watson  v.  Hamilton,  6  Rich.  (S.  C) 
Law,  75. 

-  In  Admiralty,  where  costs  are  discretionary,  the  right  to  nominal  damages  seems  to  be 
regarded  as  loss  important  than  in  the  common-law  courts;  thus  in  Barnett  v.  Luther  (1  Cur- 
tis' C.  C.  R.  434),  Curtis  J.  said,  "If  it  were  admitted  that  in  an  action  at  law  a  seaman 
could  recover  nominal  damages  for  a  blow  inflicted  by  the  master,  it  does  not  follow  that  the 

admiralty  will  award  him  nominal  damages At  the  commmon  law,  the  prevailing 

party  having  a  legal  right  to  costs,  which  is  of  itself  a  substantial  right,  it  is  necessary  to  decide^ 
claims  to  nominal  damages  upon  strict  legal  principles,  even  where  nothing  but  a  question  of 
costs  is  involved.  But  in  the  admiralty,  the  costs  are  in  the  discretion  of  the  court,  and  do  not 
depend  upon  the  question  whether  the  libellant  recovers  one  dollar  or  nothing." 

'^  Some  of  the  late  decisions  i-estrkting  the  recovery  to  nominal  damages  will  be  found  of 
interest.  Where  one  had  borrowed  money  from  another  on  mortgage  on  his  land,  at  the  same 
time  covenanting  for  the  security  of  the  mortgagee  that  certain  improvements  should  be  erected 
by  a  stipulated  time  and  in  a  certain  manner,  which  owing  to  the  default  of  the  contractor  who 
was  to  erect  the  buildings  were  not  completed  by  the  precise  time  nor  in  the  exact  manner 
agreed,  so  that  the  mortgagee  was  subjected  to  extra  expense  for  insurance,  but  some  extra 
work  was  done  on  the  buitdings  which  increased  the  value  of  the  mortgagee's  security  to  an 
extent  more  than  equivalent  to  the  loss  and  additional  expense,  it  was  held  that  the  mortgixgee 
was  entitled  to  nominal  damages  only.      Pond  v.  Merrifield,  12  Cush.  (Mass.)  181. 

The  defendant  having  mortgaged  his  life  interest  in  certain  property  to  secure  a  loan  of 


64  NOMINAL   DAMAGES.  [CH.    H. 

[56]  Where  the  action  is  brought  to  prevent  trespasses,  to 
try  titles  to  land,  or  to  determine  rights  of  any  kind,  it  is 
very  equitable  that  the  party  in  the  wrong  should  bear  the  ex-  ■ 
pense  of  the  controversy ;  but  in  most  other  cases,  the  rule  of 
nominal  damages,  provided  they  carry  costs,  only  tends  to 
engender  litigation.^  We  shall  have  occasion  hereafter  to  notice 
this  more  particularly  ;  but  it  should  be  borne  in  mind,  that  the 
rule  of  nominal  damages,  unless  carefully  limited  to  cases  where 
a  right  is  necessarily  litigated,  results  in  gross  injustice.  It  is 
of  no  consequence  whether  a  claim  to  real  or  to  personal  prop- 
erty is  in  question,  the  defendant  ought  not  to  be  charged  with 
the  costs  of  the  proceeding,  if  the  suit  be  either  malicious  or 
unnecessary.  The  law  should  hold  out  no  inducement  to  use- 
less or  vindictive  litigation.*  ^ 

*  I  am  happy  to  find  this  language  cited  the  difference  between  the  Scotch  and  English 

with  approbation  in  Vermont,  in  Paul  w.  Sla-  law,  on  the  subject  of  nominal  damages.     It 

son,  22  Verm.  231,  per  Poland  J.  was  a  suit  growing  out  of  a  lease  of  certain 

The  case  of  Hall,  App't.  i".  Ross,  Resp't,  1  salmon-fishing  stations,  which  had  been  dis- 

Dow,  201,  presents,  in  a  striking  point  of  view,  turbed  by   the   erection   of  a   dock.     In   the 

£12,.")00,  which  was  further  secured  by  a  conveyance  of  the  reversion  in  fee  and  of  a  policy  for 
£13,000,  payable  within  three  months  after  the  death  of  the  defendant,  in  case  he  should  "  leave 
issue  male  by  his  then  present  wife  living  at  his  death,"  covenanted  that  he  would  during  his 
life,  and  so  long  as  the  £12,500  or  any  part  thereof  remained  due,  continue  to  pay  the 
premiums  on  the  policy.  The  mortgage  deed  also  provided  that  the  plaintiffs  might  pay  the 
premiums  if  the  defendant  neglected  to  do  so,  and  charge  such  payments  against  the  mort- 
gaged premises,  but  contained  no  covenant  on  the  part  of  the  defendant  to  repay  the  premiums 
so  paid.  The  defendant,  after  paying  the  premiums  for  a  time,  discontinued  doing  so,  after 
there  was  no  further  possibility  of  issue  by  his  then  wife.  The  subsequent  premiums  were 
regularly  debited  year  by  year  by  the  office  to  the  mortgage  account  of  the  defendant,  but  the 
defendant  had  no  notice  of  this  course  of  dealing.  In  action  brought  against  the  defendant  on 
his  covenant  to  pay  the  premiums,  it  was  held,  assuming  the  plaintifts  to  have  paid  the  pre- 
miums, they  were  not  entitled  to  more  than  nominal  damages.  Browne  v.  Price,  4  C.  B.  (N. 
S.)  598. 

And  where  the  assignee  of  a  mortgage  had  paid  the  assignor  part  of  the  amount  and  given 
his  bond  conditioned  to  collect  the  balance  by  foreclosure  or  otherwise  and  pay  it  over,  or  after 
foreclosure  sell  the  land  by  auction  and  pay  the  assignor  the  proceeds,  deducting  the  amount 
paid  and  the  costs  and  interest,  and  afterwards  assigned  the  mortgage  to  another  person,  who 
entered  on  the  land  for  the  purpose  of  foreclosure,  but  subsequently  instead  purchased  the 
equity  of  redemption  and  sold  the  land  at  auction  within  three  years  for  $1,500,  it  was  held 
that  although  there  was  a  technical  breach  of  the  bond,  as  the  mortgage  was  not  foreclosed,  the 
plaintiff",  in  the  absence  of  proof  of  actual  damage  from  the  mode  of  sale,  was  entitled  to  nominal 
damages  only.     Pollard  v.  Porter,  3  Gray,  312. 

In  an  action  to  recover  private  letters  written  to  the  intestate,  in  the  absence  of  proof  of  their 
having  a  pecuniary  value,  nominal  damages  only  can  be  recovered.  Donohue  v.  Henry,  4  E. 
I).  S.  (N.  Y.)  162. 

Mliere  judgment  is  given  by  the  court  on  agreed  facts  but  no  damages  are  agreed  by  the 
parties,  the  judgment  for  the  plaintiff  will  be  for  nominal  damages  only.  McAneany  v.  Jewett, 
10  Allen  (Mass.)  151.      See  Lawrence  v.  Kemp,  1  Duer,  363. 

1  It  is  provided  by  statue  in  England,  and  generally  in  the  different  States  of  the  Union,  that 
in  actions  at  law  for  the  recovery  of  money,  a  recovery  to  a  certain  amount  beyond  nominal 
damages  shall  be  necessary  to  carry  costs.  And  where  a  jury,  acting  on  the  information  of  the 
plaintifTs  counsel  in  his  summing  up,  that  a  verdict  for  less  than  £5  would  not  carry  costs, 
found  that  amount  for  a  trifling  assault,  the  court  granted  a  new  trial.  Poole  v.  Whitcomb, 
12  C.  B.  770. 

2  The  principle  in  regard  to  nominal  damages  in  cases  of  tort  seems  to  be  this  :  If  a  trespass 
is  committed,  that  is,  if  a  right  is  invaded  or  interfered  with,  although  without  any  actual 
damage  resulting,  the  person  to  whom  the  right  belongs  may  maintain  an  action  and  recover 
nominal  damages.     But  where  a  person  is  directly  using  or  confines  his  o^xirations  to  his  own 


CH.    II.] 


NOMINAL   DAMAGES. 


65 


Having  thus  stated  the  rule  of  damages  where  no  actual  loss 
is  sustained,  we  now  proceed  to  ascertain  the  extreme  limits  of 
legal  relief  where  positive  injury  is  done  ;  and  for  that  purpose 
shall  next   examine    the  subject   of  remote  and  consequential 

DAMAGES. 


Scotch  court,  the  judges  (fourteen  in  number) 
were  equally  divided.  Of  tlie  seven  wlio 
decided  against  the  claim,  four  were  satisfied 
that  the  aj)i)ellant  had  sustained  damage,  but 
apiiareutly  thought  the  damage  coukl  not  be 
ascertained  ;  and  judgment  was  given  against 
the  party  claiming,  with  costs.  The  Lord 
President,  however,  said  that  in  several  actions 
usual  in  Scotland,  they  were  under  the  necessity 
of  "  conjecturing  the  damages." 

On  a])])cal  to  the  House  of  Lords,  Lord 
Eldon  said,  "  If,  in  England,  a  majority  of  the 
judges  had  been  of  opinion  that  some  damages 
were  due,  their  Lordships  would  never  have 
heard  of  the  decision  being  against  the  person 
who  had  made  out  his  claim  to  damages.  Too 
much  might  be  given  him,  or  too  little ;  but 
he  could  never,  imder  such  circumstances,  be 
dismissed  out  of  court,  with  the  additional  loss 


of  having  to  pay  the  expenses  of  the  suit.  It 
might  be  very  difficult  to  ascertain  the  amoinit 
of  the  damage  ;  and  in  this  country  there  were 
two  modes  of  proceeding  in  such  cases,  viz. : 
to  prove  the  amount  by  the  testimony  of  com- 
petent witnesses ;  or,  when  there  was  no 
ground  or  criterion  to  estimate  the  damage, 
they  were  in  the  habit  of  giving  nominal  dam- 
ages ;  but  they  never  dismissed  the  claim 
altogether,  when  it  appeared  that  there  was 
some  damage."  And  the  judgment  was  re- 
versed, with  instructions :  First,  that  if  dam- 
ages had  been  sustained,  compensation  was 
due.  Second,  that  the  party  should  furnish 
further  proof;  and  if  not,  that  the  court 
should  ascertain  the  amount  of  damages  by 
such  other  means  as  their  practice  should 
authorize,  and  then  to  do  what  was  fit  and 
just. 


property  only,  although  the  doing  so  may  inconvenience  another,  there  is  no  right  of  action, 
and  no  damages  whatever  can  be  recovered,  so  long  as  the  damage  is  not  appreciable.  St- 
Helens  Smelting  Company  v.  Tipping,  H.  H.  L.  C.  642.  The  wise  saw,  sic  utere  tuo  itt  alienum 
non  Imlas,  docs  not  here  apply  to  the  extent  of  giving  a  right  of  action.  The  law,  in  such  case, 
no  longer  distinguishes  between  no  "  appreciable  damage"  and  no  damage  at  all.  See  Smith 
V.  Thackerah,  1  L.  E.  C-  P.  564. 


CHAPTER  III. 

REMOTE    AND    CONSEQUENTIAL   DAMAGES. 

No  Compensation  allowed  in  Damages,  but  for  the  Direct  and  Immediate  Con- 
sequences of  the  Act  complained  of.  —  French  Law  on  this  Subject.  —  Scotch 
Law.  —  The  Common  Law.  —  What  are  considered  Direct  and  Immediate 
Consequences.  —  Loss  of  Profits.  —  As  between  Principal  and  Surety.  — 
Statutes.  —  Counsel  Fees.  —  Damages  arising  after  Suit  brought.  —  Pros- 
pective Damages.  —  Liability  of  Grantees  of  Franchises  for  Consequential 
Damages. 

Having  in  the  last  chapter  stated  the  measure  of  damages 
where  no  actual  loss  is  sustained,  I  now  proceed  to  exhibit  the 
general  rule  which  fixes  the  limit  of  compensation  in  cases 
where  positive  injury  results  from  the  alleged  wrong.  That  rule 
is  the  one  which  prohibits  any  allowance  for  damages  remotely 
resulting  from  the  principal  illegal  act.  Such  damages  are  fre- 
quently termed  remote  damages  and  sometimes  conseqiieniial  dam- 
ages. These  terms  are  not,  however,  necessarily  synonymous, 
or  to  be  indifferently  used.  All  remote  damages  are  conse- 
quential, but  all  consequential  damages  are  by  no  means  remote. 
We  shall  have  frequent  occasion  to  notice  the  existence  of 
this  principle  hereafter,  when  examining  more  minutely  the 
rules  of  damages  in  j)articular  cases ;  but  it  is  proper  before 
entering  on  that  part  of  the  subject,  to  have  an  idea  of  the 
general  boundaries  of  this  branch  of  our  jurisprudence. 

It  has  already  been  stated  that  the  law  does  not  aim  at  com- 
plete compensation  for  the  injury  sustained :  that  it  seeks  rather 
to  divide  than  to  satisfy  the  loss  ;^  and  that  in  cases  of  contract, 
as  well  as  of  tort,  where  no  question  arises  of  fraud,  malice,  or 
oppression,  the  direct  pecuniary  damage  with  the  costs  of  the 
litigation  form  the  measure  of  relief     In  other  words,  the  law 

refuses  to  take  into  consideration  any  damages  remotely 
[58]  resulting  from  the  act  complained  of     This  proposition,  or 

one  correlative  to  it,  is  expressed  in  the  maxim  Causa  prox- 
ima,  non  remota,  spectatur;  or,  in  the  language  of  Lord  Bacon,  "  It 
were  infinite  for  the  law  to  judge  the  causes  of  causes,  and  their 

^  See  note  1,  ante,  p.  38. 


CH.    III.]  CONSEQUENTIAL   DAMAGES.  57 

impulsion  one  on  another.  Therefore,  it  contenteth  itself  with 
the  immediate  cause,  and  judgeth  of  acts  by  that  without  look- 
ing to  any  further  degree."  * 

Civil  Law.  —  This  general  principle  pervades  the  civil  as  well 
as  the  common  law,  and  applies  equally  to  cases  of  breach  of 
contract,  and  of  violation  of  duty ;  to  all  cases,  in  short,  where 
no'  complaint  is  made  of  any  deliberate  intention  to  injure.  In 
these  latter  cases  we  have  seen  that  our  law  does  not  pause  at 
the  line  of  mere  compensation,  but  proceeds  to  punish  the 
offender.  The  language,  however,  held  on  this  subject,  and  the 
reasons  assigned  for  the  disregard  of  remote  damages,  are  far 
from  being  uniform.  In  regard  to  contracts,  it  is  sometimes  said 
that  the  defendant  shall  be  held  liable  for  those  damages  only 
which  both  parties  may  be  fairly  supposed  to  have  contemplated 
at  the  time  they  entered  into  the  agreement,  as  likely  to  result 
from  it ;  and  this  appears  to  be  the  rule  adopted  by  the  writers 
of  the  modern  civil  law.^  Thus  Pothierf  puts  the  case  of  an 
ag-reement  for  the  sale  of  a  horse,  and  failure  to  deliver.  If  in 
this  instance  horses  have  risen  in  price,  the  purchaser  has  a 
claim  for  what  he  has  been  obliged  to  give  for  a  similar  animal, 
over  and  above  the  price  at  which  he  was  to  have  that  of  the 
seller ;  and  this,  in  the  language  of  the  Roman  Law,  he  terms 
the  damages  propter  rem  ipsam  non  hahifam.  But  on  the  other 
hand,  if  the  purchaser  were  a  canon  of  the  church,  and  by  rea- 
son of  the  non-delivery  of  the  horse  could  not  arrive  at  his  resi- 
dence in  season  to  receive  his  gros  fruits  (or  tithes),  the  seller  is 
not  liable  for  the  loss  of  those  gros  fndts,  because  this  accident 
was  not  foreseen  at  the  time  of  the  contract. 

So,  in  case  of  a  letting  of  a  house  for  a  given  term,  say  eigh- 
teen years,  which  the  letter  in  good  faith  supposes  his,  and  if  at 
the  end  of  ten  or  twelve  years  the  lessee  is  evicted  by  the  true 
owner,  the  lessor  is  liable  for  the  damages  resulting  from  the 
expense  of  moving,  and  the  rise  of  the  rent  of  similar 
tenements ;  these  are  propter  rem  ipsam  non  hahitam.  But  [59] 
he  is  not  liable  for  an  injury  done  to  a  business  established 
in  the  house  by  the  lessee  subsequent  to  the  letting,  nor  for 
furniture  injured  in  the  removal  ;^  this  is  damage  that  could  not 

*  Maxims  of  the  Law,  Regula  1.  t  Traite  des  Obligations,  part  i.  ch.  ii.  art. 

iii.  §  160,  etseq. 


1  See  post,  76,  note. 

2  Moreover,  it  is  the  carelessness  of  the  people  whom  the  lessee  emjjloyed  which  is  the 
cause  of  the  damage  to  the  furniture,  and  not  the  eviction  which  is  merely  the  occasion  of  it. 
Ibid. 


58  CONSEQUENTIAL    DAMAGES.  [CH.    III. 

have  been  contemplated  at  the  time  of  the  contract.  But  if,  on 
the  other  hand,  the  horse  above  referred  to  had  been  sold  for 
the  express  object  of  enabling  the  canon  to  arrive  in  time  for 
his  gros  fruits,  or  the  building  had  been  let  for  the  express  ob- 
ject of  carrying  on  a  particular  business,  then  the  injuries,^ 
which  otherwise  would  be  too  remote,  become  direct  and  imme- 
diate, and  constitute  a  valid  claim,  as  forming  part  of  the  con- 
tract between  the  parties.  So  if  one,  not  a  carpenter,  sell  tim- 
ber which  the  purchaser  uses  to  prop  up  his  building,  and  by 
reason  of  the  timber  being  defective,  the  building  fall  and  be 
destroyed,  —  if  the  seller  acted  in  good  faith,  and  was  ignorant 
of  the  defect,  he  will  only  be  liable  for  the  difierence  in  price 
between  good  timber  and  that  sold.  If,  however,  the  seller  was 
a  carpenter  who  sold  the  timber  for  the  express  purpose  of 
propping  up  the  house,  then  he  shall  be  held  liable  for  all  dam- 
age done  the  building.  But  again,  if  the  timber  be  sold  to  be 
used  in  reference  to  a  particular  building,  and  it  be  used  for  one 
larger  and  more  valuable,  —  even  if  it  were  insufficient  for  a 
smaller  one,  the  seller  shall  be  liable  only  for  the  value  of  the 
smaller  building.  So,  again,  in  the  second  case,  the  seller  of  the 
timber  is  only  liable  for  the  building  itself,  and  not  for  furniture 
in  it  at  the  time  of  its  destruction.  But  if  an  architect  con- 
tract to  erect  a  dwelling-house,  and  by  reason  of  his  negligence 
it  fall,  he  shall  be  liable  for  the  furniture  as  well  as  the  building, 
because  it  is  to  be  considered  that  the  architect  must  have  been 
aware  that  the  house  would  be  used  for  holding  furniture.  But 
he  is  not  liable  for  jewelry  and  manuscripts  of  great  and  ex- 
traordinary value. 

In  cases  of  fraud,  the  civil  law  made  a  broad  distinction.  In 
such  cases  the  debtor  was  liable  for  all  the  consequences  of  his 
fraud,  not  only  of  those  ijropter  rem  ipsam,  but  all  others ;  for  he 
who  commits  a  fraud  is  bound,  velit  noUt,  to  repair  the  wrong 
caused  thereby.  For  instance,  if  a  cow  tainted  with  an  infec- 
tious malady,  is  fraudulently  sold,  the  seller  will  be  liable, 
[60]  not  only  for  the  animal  itself,  but  for  the  others  destroyed 
by  the  spread  of  the  contagion.^  But  Pothier  is  of  opinion 
that  there  is  still  a  limit  to  this  liability  ;  and  he  puts  the  case 
of  a  similar  contagious  disease,  and  supposes  that  in  conse- 
quence thereof  the  purchaser  is  prevented  from  cultivating  his 
lands,  by  means  whereof  his  payments  are  suspended,  his  prop- 
erty is  seized,  and  he  is   thrown  into  prison;  he  considers  it 

1  That  is,  from  his  loss  of  the  tithes  or  the  business. 

2  The  rule  of  our  law  is  the  same.    See  Mullet  v.  Mason,  1  L.  R.  (C.  P.)   559;  post,  90 
note;  295  note;  Bradley  v.  Rea,  14  Allen,  20. 


CH.  III.]  Consequential  damages.  59 

clear  in  this  case,  that  the  seizure  of  property  is  not  to  be 
charged  to  the  fraudulent  sale, —  doubts,  also,  if  the  being  pre- 
vented from  cultivating  the  property  should  enter  into  the  con- 
sideration of  damages,  and  thinks,  at  all  events,  it  should  only 
do  so  in  part. 

Code  Napoleon. —  The  modern  French  law,  as  declared  in  the 
Napoleon  Code,  contains  the  recognition  of  the  same  general 
principles.  "  The  damages  due  the  creditor  consist  in  geneial 
of  the  loss  that  he  has  sustained,  and  the  profit  which  he  has 
been  prevented  from  acquiring,  subject  to  the  modifications  here- 
inafter contained." 

"The  debtor  is  liable  only  for  the  damages  foreseen,  or  which 
mio-ht  have  been  foreseen  at  the  time  of  the  execution  of  the 
contract,  when  it  is  not  owing  to  his  fraud  that  the  agreement 
has  been  violated. 

"  Even  in  the  case  of  non-performance  of  the  contract,  result- 
ing from  the  fraud  of  the  debtor,  the  damages  comprise  only  so 
much  of  the  loss  sustained  by  the  creditor,  and  so  much  of  the 
profit  which  he  has  been  prevented  from  acquiring,  as  directly 
and  immediately  result  from  the  non-performance  of  the  con- 
tract.* 

Difference  between  Civil  and  Common  Law.  —  Two  prominent 
points  of  difference  will  be  borne  in  mind,  between  the  princi- 
ples of  the  modern  civil  system  as  thus  laid  down,  and  those  of 
the  common  law,  which  arise  mainly  from  the  arbitrary  char- 
acter of  the  forms  of  action  as  they  originally  existed  at 
Common  Law.  By  those  forms  of  action,  contracts  and  [Gl] 
wrongs  are  intended  to  be  kept  wholly  distinct.  Li  case  of 
a  breach  of  contract  (with  the  single  exception  of  promises  to 
marry),  the  animus  or  intention  of  the  party  in  default,  as  a 
general  rule,  is  entirely  immaterial,  and  whether  the  non-per- 
formance of  the  agreement  result  from  inability  or  deliberate 
malice,  the  rule  of  damages  is  the  same.  On  the  other  hand,  in 
cases  of  fraud  or  vexation,  as  has  been  already  repeatedly  said, 
compensation  is  blended  Avith  punishment,  and  the  jury  left 
largely  to  their  discretion. 

*  The  language  of  the  Code  is  as  follows :         Dans  les  cas  meme  oil  rinexecution  de  la 

Les  dommages   et  interets   dus  au   creancier  convention    re'sulte   du   dol   du   deliiteur,   les 

sont,  en  ge'ne'ral,  de  la  perte  qu'il  a  faite,  et  du  dommages  et  inte'rets  ne  doivent  conijircndre 

gain  dont  il  a  e'te'  prive',  sauf  les  exceptions,  et  a  I'e'gard  de  la  perte  e'prouve'e  par  le  cre'ancier, 

modifications  ci-apres.  et  du  gain  dont  il  a  e'te  priv^,  que  ce  que  est 

Le  debiteur  n'est  tenu  que  des  dommages  et  une  suite  immediate  et  directe  de  rinexecution 

interets  qui  ont  ete  pre'vus  ou  qu'on  a  pu  prevoir  de  la  convention.  —  Code  Civil,  liv.  iii.  tit.  iii. 

lors  du  contrat,  lorsque  ce  n'est  point,  par  son  sec.  1149,  1150,  1151. 
dol  que  I'obligation  n'est  point  execute'e. 


60  CONSEQUENTIAL   DAIVIAGES.  [CH.    III. 

It  will  be  perceived  that  the  above  provisions  of  the  French 
Code  recognize  the  same  principles  as  those  which  we  have 
illustrated  by  the  extracts  from  Pothier,  and  which  are,  in  fact, 
nothing  else  as  to  the  leading  principle,  than  a  repetition  of  the 
general  language  of  the  Roman  law :  quantum  mea  interfuit ;  id 
est,  quantum  mihi  al)est,  quantumque  lucrari  potui*  It  is  difficult, 
however,  to  understand  practically  what  rules  the  civil  or  the 
French  law  intends  to  lay  down ;  as  they  are  subject  to  the 
arbitrary  discretion  already  often  noticed.  A  recent,  and  very 
able  commentator  on  the  Code,  holds  this  language  :  — 

"  There  is  nothing  more  abstract  than  the  subject  of  dam- 
ages ;  the  law,  therefore,  has  only  been  able  to  lay  down  general 
principles,  leaving  the  wisdom  of  the  tribunals  to  apply  them 
according  to  the  circumstances  and  the  facts  of  the  case ;  and 
though  it  establishes  that,  in  general,  damages  consist  of  the 
loss  which  the  creditor  has  suffered,  and  the  profit  of  which  he 
has  been  deprived,  nevertheless  the  judge  should  be  more 
moderate  in  granting  large  damages  for  profits  prevented  than 
for  loss  actually  sustained :  the  lucrum  cessans  is  generally  less 
calculated  to  excite  the  solicitude  of  the  judge,  than  the  damnum 
emergens;  and  too  much  rigor  on  this  branch  of  the  subject 
would  degenerate   into   injustice.     Summum  jus  summa  injuria. 

Such  is  the  general  opinion  of  our  authors."  f 
[62]  Another  very  eminent  commentator  on  the  Code,  in 
order  to  illustrate  the  general  princij^le  in  regard  to  re- 
moteness of  damage,  puts  the  case  of  a  contract  by  which  Titius 
is  to  let  a  sufficient  number  of  vehicles  on  a  given  day,  for  the 
vintage  of  a  certain  vineyard  remote  from  ni}^  domicil,  and 
whither  I  have  proceeded  to  prepare  for  the  work,  and  hired 
my  hands.  Titius  failing  to  furnish  the  vehicles,  I  am  com- 
pelled to  dismiss  my  hands  and  postpone  the  vintage.  A  day 
or  two  after  a  hailstorm  takes  place  and  destroys  the  whole 
crop  which  I  have  sold  to  pay  my  creditors ;  owing  to  their  not 
being  paid,  my  property  is  seized  and  I  am  driven  into  bank- 
ruptcy. The  question  is  tlien  asked.  What  does  Titius  owe  ; 
does  he  owe  me   the  value  of  my  crop  in  wdiole  or  in   part  ? 

*  L.  13,  fF.  ratem  rem  hah. ;  and  see  supra,  reserve  a  en  accorder  de  considerables  pour  le 

p.  24.  gain   manque   que   pour   la  perte   reellement 

t  II  n'est  pas  de  matiere  plus  abstraite  que  ^prouvee  :  le  lucrum  cesscuis  est  ge'neralement 

cellc  relative  aux  dommages-inte'rets  ;  aussi  la  moins  susceptible  d'exciter  sa  sollicitude  que 

loi  n'a  t'elle  pu  tracer  que  des  principes  ge'ner-  le  damnum  emerf/ms.     Et  c'est  en  cette  matiere 

aux  en  s'enreniettant  a  la  sagesse  des  tribunaux  que  trop   de  I'igeur   degenererait  souvent   en 

pour  leur  application  selon  les  circonstances  et  injustice.     Summumjus  summa  injura.     Tel  est 

les  faites  de  la  cause.    Et  quoiqu'ellc  etablisse  le  sentiment  commun  des  auteurs.    Duranton, 

que  les  dommages-interets  sont  en  general  la  Cours  de  Droit  Francis,  vol.  x.  n.  480  and 

perte  que  le  creancier  a  eprouvee  et  le  gain  dont  481. 
il  a  ete  prive,  neanmoins  le  juge  doit  etre  plus 


CH.    III.]  CONSEQUENTIAL    DAMAGES.  61 

Should  he  indemnify  me  for  the  loss  of  my  property  and  my 
consequent  insolvency  ?  And  the  learned  writer  decides  as  to 
the  latter  head  of  damage,  that  Titius  is  not  responsible.  He 
pronounces  it  too  remote  a  loss.  It  is  the  direct  and  immediate 
result  of  the  bad  state  of  my  pecuniary  affairs,  which  Titius  had 
no  means  to  foresee,  and  which  he  was  not  bound  to  consider. 
As  to  the  loss  of  the  crop,  he  proceeds  to  distinguish  between 
bad  faith  (cfoZ,  mauvaise  foi)  and  inability.  If  the  failure  to  per- 
form the  contract  was  owing  to  the  latter,  then,  though  Titius 
is  in  fault,  still,  as  it  is  not  in  consequence  of  his  bad  faith  that 
the  contract  has  been  broken,  he  is,  by  the  provisions  of  the 
code  above  cited,  liable  only  for  the  damages  which  were  fore- 
seen, or  which  might  have  been  foreseen  at  the  time ;  and  it 
could  not  be  anticipated  that  the  day  after  that  fixed  upon,  a 
hailstorm  would  destroy  my  crop. 

But  on  the  contrary,  if  the  non-performance  was  owing  to 
bad  faith,  then  the  same  author  considers  Titius  liable  for  the 
loss  of  the  crop ;  because  it  cannot  reasonably  be  denied  that 
this  loss  is  an  immediate  and  direct  result  of  the  non-perform- 
ance of  the  contract.  If  it  be  said  that  the  immediate  and 
direct  cause  of  the  loss  of  my  crop  was  the  storm,  and  not  the 
fault  of  Titius,  the  answer  is,  that  to  render  the  debtor  acting 
in  bad  faith  responsible  for  damages,  the  Code  (Art.  1151) 
does  not  require  that  the  non-performance  of  the  contract  [63] 
should  be  the  immediate  and  direct  cause  of  the  damage,  but 
only  that  the  damage  should  be  the  immediate  and  direct  residt 
(suite)  of  its  violation,  which  is  a  very  different  thing.* 

This  case,  again,  well  illustrates  the  difference  between  the 
French  system  and  our  own  in  regard  to  damages.  With  us,  as 
a  general  rule,  no  discrimination  is  made  in  regard  to  contracts, 
as  to  the  motive  which  produces  their  non-performance.^  So  in 
this  instance,  whether  Titius  was  actuated  by  a  fraudulent  or  a 
malicious  purpose,  no  action  could  be  maintained  but  for  a 
breach  of  contract ;  and  in  that  action,  I  apprehend  that  the 
damage  resulting  from  an  extraordinary  hailstorm  would  be 
considered  altogether  too  remote  to  be  allowed  as  damages. 
On  the  other  hand,  however,  if  Titius,  instead  of  violating  an 
agreement,  had  committed  a  malicious  trespass,  as  by  removing 
the  vehicles  prepared  for  the  vintage,  the  jury  might  give  dam- 
ages in  their  discretion  to  punish  the  offense.^ 

\/        *  Toullier,  Droit  Civil,  liv.  iii.  tit.  iii.  ch.  iii.     De  I'effet  des  Obligations,  §  284,  et  seq. ;  vol. 
vi.  p.  290,  et  seq. 


1  Seeposi,  p.  206,  note.  ^ 

^  Nor  in  such  a  case  would  our  law  be  otherwise.    Where  the  jury  found  that  in  consequence 


02  CONSEQUENTIAL    DAMAGES.  [cil.    III. 

Another  case  from  the  same  commentator  will  illustrate  the 
extent  to  which  the  civil  law  goes  in  questof  resulting  damage. 
If,  for  instance,  an  architect  who  has  contracted  to  build  a 
house  by  a  given  time  for  a  given  tenant,  constructs  it  so  ill 
that  a  part  of  it  falls  down,  this  causes  three  sorts  of  loss, —  the 
expense  of  rebuilding,  the  rent  that  the  proprietor  might  have 
received,  the  damage  done  the  tenant ;  and  though  the  second 
and  third  class  appear  remote,  yet,  as  they  are  caused  by  the 
act  of  the  contractor,  they  should  be  charged  to  him.  And 
there  is  even  a  fourth  class  of  loss  for  which  he  should  answer, 
that  of  the  furniture  in  the  house,  and  which  could  not  be  saved, 
for  the  architect  must  be  presmned  to  know  that  the  house 
would  contain  furniture ;  but  he  is  not  responsible  for  jewelry, 
or  things  of  extraordinary  value,  unless,  indeed,  there  was  a 
deliberate  design  to  injure.  Toullier  proceeds  to  say  that  in  this 
case,  and  in  many  others,  the  damages  might  be  so  enormous  as 
to  ruin  the  party  charged,  although  he  was  acting  in  entire 
good  fiith  ;  and  that  hence  Domat  has  been  induced  to  adopt 
the  principle  that  the  architects  able  to  meet  these  losses  should 
[64]  be  charged  with  them,  but  that  inasmuch  as  contractors 
have  not  always  the  means  to  make  such  complete  remu- 
neration, and  as  humanity  should  moderate  the  rigor  of  ex- 
treme justice,  this  kind  of  damages  should  be  regulated  by  dis- 
cretion. Toullier,  however,  vigorously  combats  what  he  pro- 
nounces a  false  and  dangerous  doctrine,  and  which,  he  says  with 
extreme  good  sense,  would  result  in  different  judgments  of  the 
same  cause,  according  to  the  fortune  of  the  debtor.  The  dis- 
cussion is  curious  as  going  to  illustrate  the  apparent  absence  of 
any  fixed  measure  of  damages  in  the  French  law,*  and  the  cau- 
tion with  which  its  authors  should  be  consulted  on  questions 
connected  with  this  branch  of  jurisprudence. 

Having  thus  rapidly  exhibited  the  rules  of  the   French  and 

*  The  vag;;eness  of  the  French  system  in  unc  somme  si  modique  qu'ils  ne  vont  pas  a 

this  respect  dates,  as  we  have  ah'cady  seen,  recoinpcnser  la  dixieme  partie  de  ceux  qui  ont 

from  an  early  period  of  their  jurisprudence,  ete  soutferts  par  la  partie  a  laquelle  ils  sont 

One  of  the  best  authors  of  their  ante-revolu-  adjudges;  ces  sortcs  d'indulgences  ne  sont  pas 

tionary  laws  says,  "  Nothing  is  more  arbitrary  seulement  eontraires  au  bicn  des  particulicrs, 

than  the  amount  of  damages."    But  the  whole  mais  elles  nuisent  encore  davantage  au  bien 

clause  is  worth  extracting :  —  public,  puisqu'clles  fomentent  les  violences  et 

Pour  les  doramages  et  interets,  ils  dependent  la   mauvaise   foi   par  I'esperancc   d'impunite. 

toujours  des  circonstances  du  fait ;  c'est  pour-  Argou,    Institution   au    Droit   Fravcois,  Paris, 

quoi  il  n-y  a  rien  de  plus  arbitraire,  et  Ton  1787,  liv.  iv.  ch.  17. 
voit  tres   souvent  dejuges   que   les   fixent   a 

of  the  wrongful  abduction  of  the  plaintiffs  slaves,  the  cattle  of  the  neighl>ors  destroyed  his 
corn,  and  a  flood  in  tlie  river  swe]3t  away  a  quantity  of  his  wood,  it  was  held,  that  it  was  not 
erroneous  to  include  the  value  of  these  things  in  the  damages,  in  an  action  of  trespass  for 
carrying  away  the  slaves.  McAfee  v.  Crofford,  13  How.  447.  See  also  Parmalec  v.  Wilks,  22 
Barb.  (N.  Y.)  539 ;  Goodloe  v.  Rogers,  10  La.  Ann.  631.     But  sev  post,  p.  114,  n.  1. 


CIL    III.]  CONSEQUENTIAL    DAMAGES.  63 

Modern  Civil  law  «as  to  remote  and  consequential   diinuiges,  we 
turn  to  other  systems. 

Scotch  Rules.  —  One  of  the  most  eminent  authors  of  the  Scotch 
jurisprudence  *  divides  resulting  damage  into  ccrkiin  and  nncer- 
taiii :  certain,  as  the  loss  of  rent  consequent  on  the  destruction 
of  a  house  ;  uncertain,  as  the  profit  that  might  have  jjeen  made 
upon  property  of  which  the  owner  has  been  robbed. 

Certain  consequential  damage  is,  he  says,  always  allowed  by 
a  court  of  law.  Uncertain  damage  wdll  be  allowed  by  a  court 
of  equity,  where  a  criminal  act  is  the  cause  of  the  loss ;  and 
this,  l)ecause  the  criminality  throws  the  burden  of  proof  on  the 
delinquent,  and  he  is  charged  with  every  probable  item  of 
prolit,  unless  he  can  give  conclusive  evidence  that  no  profit 
could  have  been  made.  But  I  apprehend  that  with  us  no 
distinction  exists  between  the  rules  of  ecjuity  and  law"  on  [65] 
this  subject.! 

In  regard  to  acts  merely  cidpable  and  not  criminal,  or  when 
fault  exists  without  malice,  the  same  writer  declares  that  un- 
certain consequential  damages  cannot  be  allowed.t 

So  of  the  prctiuin  affcctionis,  or  value  set  upon  the  injured 
property  by  its  owner,  over  and  above  its  intrinsic  or  market 
value,  he  holds  that  it  is  not  to  be  allowed  unless  the  injury  is 
intentional. 

Anglo-Saxon  Jurisprudence.  —  The  general  principles  of  the 
civil  law  have  been  repeatedly  recognized  in  our  own  juris- 
prudence, though  the  language  employed  to  define  the  limits  of 
damage  has  not  been  uniform.  It  has  been  sometimes  said  by 
the  courts  which  follow  the  course  of  the  common  law,  that  no 
allowance  could  be  made  for  remote  or  consequential  loss ;  ^  some- 
times that  the  damages  to  be  compensated  must  be  the  proxi- 
mate and  natural  consequences  of  the  act  complained  of.^ 

*  Lord  Kaims'  Principles  of  Equity,  2d  of  equity  and  a  court  of  common  law,  is  con- 
ed. 1767,  p.  77,  book  i.  part  i.  ch.  i.  §  v.  sidered  by  Lord  Kaims,  book  i.  part  i.  ch.  iv. 

t  The  question  whether,  in  awarding  dam-  §  v.  p.  159. 

ages,  there  be  any  difference  between  a  court  |  Book  i.  part  i.  ch.  iv.  §  v.  p.  160. 

1  See  Ohio  and  Mississippi  R.  R.  Co.  v.  Dunbar,  .20  111.  623. 

^  It  is  a  familiar  principle  elsewhere  stated  in  reference  to  promissory  notes  (/Jos^  p.  234),  that 
where  the  failure  to  perform  a  contract  consists  in  the  non-payment  of  a  sum  of  money  at  an 
agreed  time,  such  sum  with  the  interest  furnish  the  measure  of  the  damages,  and  not  the  con- 
sequences of  the  non-payment,  however  disastrous.  And  where  the  payment  of  a  sum  of 
money  b\'  a  party  to  a  contract,  although  wrongfully  demanded  by  a  tliird  party,  or  by  a 
superior  power,  would  enable  him  to  avoid  damages  beyond  such  payment,  the  other  party  to 
tlie  contract  cannot  ordinarily  be  held  for  the  damages  that  might  have  been  thus  avoided, 
notwithstanding  he  had  undertaken  to  make  good  anv  damage  the  other  might  sustain.  Sec 
Hayden  v.  Cabot,  17  Mass.  169  {infra,  11)  ;  Miller  v.  IVIariners'  Church,  7  Greenl.  51  (infra, 
94).     The  following  late  case  in  the  English  Court  of  Exchequer  appears  to  carry  this  principle 


64  CONSEQUENTIAL   DAMAGES.  [CH.    III. 

Definitions  of  Rule.  —  "  Where  the  action,"  says  the  Supreme 
Court  of  New  York  *  "  is  for  the  breach  of  a  contract,  and  no 
special  damages  are  stated  in  the  declaration,  the  plaintiff  is 
confined  in  his  recovery  to  such  only  as  naturally  arise  from  the 
breach  complained  of;  but  if  the  damage  claimed  do  not  natu?'- 
allf/  arise  from  that  fact,  they  cannot  be  recovered  unless  they  are 
particularlfj  stated  in  the  declaration,  and  not  then  if  they  are  not 
proximate.  Consequential  damages  may  naturally  arise  from  the 
mere  breach  of  a  contract,  but  they  often  depend  on  the  pecul- 
iar circumstances  of  the  case.  Such  are  allowed  without  being 
stated  in  the  pleadings,  as  are  the  fair,  legal,  and  natural  result  of 
the  breach  of  the  defendant's  agreement ;  if  they  do  not  thus 
result,  the  jury  cannot  allow  them,  unless  they  are  stated  in  the 
declaration,  and  established  by  proofs."  -^  Here  it  is  said  that 
damages  not  "  naturally  "  arising  from  the  defendant's  act  can  be 
recovered,  provided  they  be  ''^proximate',''  and  that  though  such 
damages  be  not  the  "  fair,  legal,  and  natural "  result  of  the 
breach  of  contract,  still,  they  can  be  allowed  for  if  alleged  and 

proved.     It  may  be  well   doubted,  whether  any   damages 
[66]  not  "  naturally  "  resulting  from  the  alleged  grievance  can 

ever  be  considered  proximate,  or  whether  they  can  be  taken 
into  consideration  at  all  by  the  tribunal. 

The  rule  is  not  much  more  definite  when  it  is  said  that  the 
damages  must  be  the  legal  and  natural  consequence  of  the  act 
complained  of  As  in  a  case,t  in  which  the  defendant  had  slan- 
dered the  plaintiff —  who  w^as  employed  by  one  J.  0.  as  a  jour- 
neyman for  a  year,  at  certain  wages  —  by  saying  that  he  had 
cut  certain  flocking  cord,  and  the  plaintiff  claimed  special  dam- 
ages for  his  discharge  by  J.  0.,  in  consequence  of  the  slander, 
before  the  expiration  of  the  year,  it  was  held  by  Lord  Ellen- 

*  Marcy,   J.,   in   Armstrong   v.   Percy,    5         t  Vicars  u.  Wilcocks,  8  East.  1 . 
Wend.  535,  538. 

to  a  severe  extent.  The  defendant,  having  chartered  the  plaintifFs  vessel  from  Liverpool  to 
Puerto  Cahcllo  at  a  stipulated  freight,  a  clause  was  afterwards  added  to  the  charter  party 
allowing  the  plaintiff  to  send  on  a  part  of  the  cargo  to  Maracaibo,  with  the  proviso  that  any 
expense  incurred  by  so  doing  should  be  borne  by  the  charterer.  The  ciiarterer  having  accord- 
ingly sliipped  a  part  of  the  cargo  for  Maracaibo,  the  custom-house  authorities  at  Puerto  Cabello, 
under  pretense  of  an  attempt  by  the  master  to  evade  customs  on  the  part  so  shipped,  wrong- 
fully imposed  a  tine  of  !?500  on  the  master  and  detained  the  vessel  for  some  months,  but  would 
have  permitted  her  departure  if  the  fine  had  been  paid,  which  the  master  had  not  the  means  to 
do,  and  did  not  do  ;  and  the  government  afterwards  agreed  to  pay  the  master  $5,000  for  the 
wrongful  detention,  but  did  not  pay  it. 

It  was  held  that  the  owner  of  the  vessel  could  recover  from  the  charterer  neither  the  loss  sus- 
tained by  the  detention  at  Puerto  Cabello,  nor  the  expenses  incurred  in  rcjiairing  the  damage 
to  the  ship  in  cousequences  of  such  detention,  nor  for  the  costs  and  legal  proceedings  taken  by 
him  in  respect  of  the  ship,  nor  for  the  fine.  Sully  v.  Duranty,  33  L.  J.  N.  S.  Exch.  319.  See 
however.  Green  v.  Mann,  11  Illinois,  613  (post,  198). 

1  No  damages  can  be  claimed  for  the  loss  of  a  contract  collateral  to  the  one  broken.  Bridges 
V.  Stickney,  38  Me.  361. 


ClI.    III.]  CONSEQUENTIAL    DAMAGES.  65 

borough,  that  the  discharge  of  the  plaintiff  by  J.  O.  was  a  mere 
wrongful  act,  and  not  ''  the  legal  and  natural  consequence  of 
the  slander  complained  of"  *  -^ 

Mr.  Greenleaf  has  said  with  more  accuracy,!  "  The  damage 
to  be  recovered  must  always  be  the  natural  and  proximate  conse- 
quence of  the  act  complained  of"  ^  But  it  is  I'ar  easier  to  lay 
down  a  general  proposition,  than  to  apply  it  to  a  particular 
case.  Wlien  we  come  to  analyze  causes  and  effects,  and  under- 
take to  decide  what  is  the  natural  result  of  a  given  act,  and 
what  is  to  be  regarded  as  unnatural  —  what  is  proximate  and 
Avliat  remote,  we  shall  find  ourselves  involved  in  serious  diffi- 
culty. Many  things  are  perfectly  natural,  and  yet  very  remote 
consequences  of  a  particular  act ;  many  other  results  are  proxi- 
mate, nay,  immediate,  and  yet  so  little  to  be  expected  that  they 
can  scarcely  be  pronounced  natural.t  Nor  does  the  require- 
ment that  the  damage  be  both  natural  and  proximate,  relieve 
us  from  the  difficulty.§ 

Damages  Contemplated  by  the  Parties.  —  In  Louisiana  the  sub- 
ject of  damages  is  regulated  by  the  Code  of  that  State  (Arts. 
1928,  2294,  2295),  and  it  is  declared  in  reference  to  our  pres- 
ent subject,  "  that  wdien  the  object  of  the  contract  is  anything 
but  the  payment  of  money,  where  the  debtor  has  been  guilty 
of  no  fraud  or  bad  faith,  he  is  liable  only  for  such  damages  as 
Avere  contemplated,  or  may  reasonably  be  supposed  to  have 
entered  into  the  contemplation  of  the  parties,  at  the  time  of 
the  contract ;  "  and  this  principle  has  frequently  been  carried 
out  by  the  courts  of  that  State. ||     So,  in  a  case  where  it  might 

*  111  Kelly  V.  Partington,  5'  B.  &  Adol.  645,  novel  and  constantly  changing  jjhases  which 

an  action  of  slander  for  words  of  amliiguous  the  relations  of  men  in   the  business  of  life 

meaning,  and  to  which  no  interpretation  Avas  assume,  and  out  of  which  claims  for  compen- 

given  by  innuendo,  it  was  said,  by  Taunton,  sation  spring. 

J.,  "  111  order  to  make  the  words  actionable,  §  In   Alabama,    the   phrase   "  natural   and 

they  must  be  such  that  special  damage  may  be  proximate  consequence,"  has  been  cited  with 

the  fdir  and  natural  result  of  them  ;  "  and  by  approbation  in  a  case  of  malicious  prosecution. 

Patterson,  J.,  "  I  have  always  understood  that  Doiiiiell  v.  Jones,  13  Alabama   (N.   S.),   490. 

the  special  damage  must  be  the  natural  result  But  in  truth  the  question  of  the  remoteness  or 

of  the  thing  done."    (Similar  language  is  used  consequentiality  of  damage  often  loses  itself  in 

by  the  Supreme  Court  of  New  York,  in  Grain  the  most  metaphysical  regions  of  cause  and 

V.  Petrie,  6  Hill,  522,  Ed.)  effect.     The  reader  of  Plutarch  will  remember 

t  Evidence,  vol.  ii.  p.  210.  the  charge  brought  against  Pericles  by  his  son 

X  The  Bishop  of  Durham,  in  his  admirable  Xanthippus,  who   said  "that   Ei)itimius,  the 

Treatise  on  the  Analogy  of  Religion  (too  little  Pharsalian,  having  undesignedly  killed  a  horse 

studied  in  our  time),  in  the  first  chapter,  on  a  with  a  javelin   that  he   threw    at  the   jiublic 

Future    Life,    discusses    the    meaning   of  the  games,  his  father  spent   a  whole  day  in   dis- 

word  natural,  and  defines  it  as  stated,  Jirecl,  or  puting  with  Protagoras,  which  might"  be  j)rop- 

scttkd,  similar,  or  iinifurm.     But  he  has  in  his  erly  deemed  the  cause  of  his  death,  the  javelin, 

contemplation  the  whole  course  of  God's  deal-  or  the  man  that  threw  it,  or  the  president  of 

iugs  with  his  creation,  as  far  as  known  to  us  ;  the  games." 

and  this  definition  will  not  answer  for   the  ||  Williams  v.  Barton,  13  Louisiana.  404. 

1  See  Lynch  v.  Knight,  5  L.  T.  R.  (N.  S.)  291  ;  post,  83,  note  1. 

2  Vedder  v.  Hildreth,  2  AVis.  427  ;  Walker  v.  Ellis,  1  Sneed  (Tenn.),  515. 

5 


66  CONSEQUENTIAL    DAMAGES.  [CH.    III. 

l^e  inferred  to  be  in  the  contemplation  of  the  parties  to  a  con- 
tract that  a  sugar-mill  and  engine,  which  the  manufactiu^er  un- 
dertook to  put  up  within  a  given  time,  was  for  the  purpose  of 
getting  a  certain  crop,  it  was  held  that  a  failure  to  put  it  up  in 
time  entitled  the  plaintiff  to  recover  for  the  loss  of  crop  and 
extra  wages  caused  by  the  delay.* 

These  cases  have  been  cited  with  approbation,  and  their  prin- 
ciple recognized  by  the  Supreme  Court  of  Texas  ;  and  they 
[67]  express,  perhaps,  the  clearest  and  most  definite  rule  that 
can  be  framed  in  this  perplexing  matter.f  ^ 
Having  thus  briefly  stated  the  general  principles  of  the  civil 
law,  and  of  those  systems  of  jurisprudence  which  recognize  the 
authority  of  the  same  rules,  a  more  accurate  notion  of  our 
own  law   will  be  had  by   a   review  of  some    of  the  decided 
cases ;  first  grouping  together  those  cases  where  damages  have 
been  denied,  as  being  too   remote  and  indirect ;  and  secondly, 
examining  those  cases  where  more  liberal  allowances  have  been 
made. 

Distinction  between  Trespass  and  Case.  —  In  England,  the  sub- 
ject seems  to  have  been  first  examined  in  connection  with  the 
forms  of  action.  The  original  distinction  between  trespass  and 
case  was,  that  where  the  injury  was  immediate  the  former  would 
lie,  where  consequential,  case  only ;  and  hence  it  often  became 

*  Goodloe  V.  Rogers,  10  La.  Ann.  Eep.  t  Calvit  v.  McFadden,  13  Texas,  324,  per 
631.  Wheeler,  J. 

1  In  the  late  case  of  Duckworth  r.  Ewart,  33  L.  J.  Rep.  N.  S.  Exch.  24  (2  Hurlst.  &  Colt, 
Exch.  129),  Messrs.  Rutledge,  the  owners  of  building  land  on  which  they  were  erecting 
houses,  having  become  unable  to  proceed  with  the  building,  and  having  mortgaged  it  to  a 
building  society  for  .£4,300,  and  in  lesser  amounts  to  three  other  mortgagees,  of  whom  the 
plaintiff  was  one,  entered  into  an  indenture  with  the  plaintiff  and  the  other  mortgagees  and 
other  creditors,  in  which  it  was  agreed  the  plaintiff  should  have  power  to  sell  the  land,  subject 
to  the  mortgage  to  the  buildiug  society,  and  out  of  the  proceeds  pay  the  expenses  of  the  trust 
and  the  other  mortgages  and  the  surplus  to  the  owners,  and  which  enqiowered  the  plaintiff  to 
enter  on  the  land  and  finish  the  buildings,  and  also  to  raise  any  sum  not  exceeding  £5,000  for 
carrying  into  effect  the  trusts  of  the  indenture  by  a  mortgage  on  the  premises  which  should 
have  priority  over  all  the  other  mortgages  except  that  to  the  building  society.  In  the  same 
instrument  the  defendant  covenanted  to  execute  all  assurances  for  enabling  the  plaintiff  to 
execute  the  trusts  of  the  deed.  The  plaintiff  entered  on  the  execution  of  the  trusts  and 
incurred  an  expense  of  £1,100  on  the  land.  He  also  arranged  with  the  building  society  to 
accept  £4,100  in  satisfaction  of  their  debt,  and  contracted  with  certain  persons  for  a  loan  of 
£5,000  on  the  land,  by  a  mortgage  which  was  prepared,  and  was  agreed  to  by  all  parties.  At 
the  last  moment,  when  the  parties  had  met  to  close  the  transaction,  the  defendant  refused  to 
execute  the  mortgage ;  whereupon  the  building  society,  acting  on  a  power  of  sale  contained 
in  their  mortgage,  foreclosed  it,  and  sold  the  property  at  a  forced  sale,  for  £4,510,  which  was 
exhausted  in  paying  their  debt  and  expenses. 

Martin,  B.,  was  of  opinion  that,  in  addition  to  the  costs  of  the  proposed  mortgage,  the 
defendant  was  liable  for  the  difference  between  £5,000  and  the  value  of  the  land  as  building 
land,  such  as  it  was  contem])lated  as  being  by  the  indenture,  or  at  all  events  that  he  was  en- 
titled to  £900,  the  residue  of  £5,000,  after  paying  £4,100,  agreed  to  be  taken  for  the  first  mort- 
gage. 

But  the  majority  of  the  court,  per  Pollock,  C.  B.,  and  Bramwell,  B.,  held  that  the  plaintiff 
was  entitled  to  recover  only  the  costs  of  the  abortive  mortgage. 


CH.    III.]  CONSEQUENTIAL   DAMAGES.  67 

indispensable  to  determine  to  which  class  particular  kinds  of 
damage  should  be  held  to  belong.  So  in  the  famous  squib 
case,^  where  the  defendant  threw  a  squib  into  the  market-house, 
which  fell  on  the  stall  of  a  gingerbread  seller ;  he,  to  save  liim- 
self,  threw  it  on  another  stall ;  the  proprietor  of  the  second 
stall  also  threw  it  off,  and  in  so  doing  struck  the  plaintiff  and 
put  out  his  eye  ;  here  it  was  held  tliat  the  injury  was  the  direct 
and  immediate  act  of  the  defendant,  and  that  trespass  would 
lie.*  ^  We  are  now  to  examine  an  analogous  class  of  questions, 
but  without  reference  to  any  technical  form  of  action. 

Pleadings.  —  A  preliminary  question  arises  on  the  pleadings, 
because  in  many  cases  the  recovery  of  special  or  resulting  dam- 
ages depends  on  the  proper  averments  in  the  declaration.  This 
is  a  branch  of  our  subject  which  will  be  treated  of  more  fully 
hereafter,  under  the  head  of  Pleading.f  Mr.  Chitty  says,t 
"  Such  damages  as  may  be  presumed  necessarily  to  result  [68] 
from  the  breach  of  contract,  need  not  be  stated  with  any 

*  Scott   V.    Shepherd,   2   W.   Black.    892  ;         t  Vide  post,  ch.  xxiv. 
Vandeuburgh  v.  Truax,  4  Deuio,  464.  J  Pleadings,  i.  371. 


1  In  this  leading  case  perhaps  the  exact  conclusions  of  the  four  judges  may  well  be  stated 
somewhat  more  at  large  than  in  the  text. 

Nares,  J.,  held  that  trespass  would  lie  because  the  natural  and  probable  consequence  of  the 
defendant's  act  was  injury  to  somebody,  and  tliei-efore  the  act  was  unlawful ;  and  being  unlaw- 
ful, the  defendant  was  answerable  for  its  consequences,  whether  the  injury  were  mediate  or 
immediate. 

In  this  opinion  Gould,  J.,  concurred,  expressing  further  the  opinion  that  trespass  would  lie 
for  the  miscliievous  consequences  of  another's  act,  whether  lawful  or  not. 

Blackstone,  J.,  dissenting,  held  that  the  injury  being  consequenticd  only,  and  not  immediate,  the 
action  could  not  be  maintained,  but  that  case  should  have  been  brought. 

Grey,  C.  J.,  alone  expressed  the  opinion  stated  in  the  text,  that  the  injury  was  the  direct 
and  immediate  act  of  the  defendant. 

■■'The  rule  cited  from  Mr.  Greenleaf  (ante,  6.5),  that  "the  damage  to  be  recovered  must 
always  be  the  natural  and  proximate  consequence  of  the  act  complained  of,"  admits,  perhaps, 
of  the  further  qualitication  that  the  proximateness  required  is  not  the  greatest  possible,  but 
that  the  causa  aiusuns  to  which  tlie  responsibility  attaches,  may  sometimes  concur  with  or 
precede  other  agencies  in  producing  the  loss.  For  instance,  in  a  case  where  the  defendants 
negligently  moored  their  boats  in  the  channel  and  entrance  to  the  locks  at  a  dam  on  a  river,  so 
that  the  plaintiffs'  boats,  without  fault  of  theirs,  were  stopped  outside  and  exposed  to  the 
rapidly  rising  current  till  forced  by  it  over  tlie  dam  and  lost,  the  defendants  were  held  re- 
sponsible, although  the  obstruction  of  the  locks  and  channel  was  a  more  remote  cause  of  the 
accident  than  the  flood.  Scott  v.  Hunter,  46  Penn.  192.  See  also,  Tinsman  v.  The  Belvidere 
Del.  11.  K.  Co.  2  Dutch.  (N.  J.)  148. 

Where  the  loss  of  an  eye  was  the  direct  and  immediate  consequence  of  exposure  to  which 
the  plaintiff  was  subjected  by  removing  the  roof  of  his  house,  it  was  held  that  it  might  be  con- 
sidered by  the  jury  in  aggravation  of  damages  in  the  action  of  trespass  quare  claimun /regit, 
Hatchell  "v.  Kimbrough,  -i  Jones  (N.  C.)  L.  163. 

In  New  York  it  has  been  held  that  a  dealer  in  drugs,  who  carelessly  labels  a  deadly  poison 
as  a  harmless  medicine,  and  sends  it  so  labeled  into  market,  is  liable  to  all  persons  who,  without 
fault  on  their  part,  are  injured  by  using  it  as  sucli  medicine,  in  consequence  of  the  false  label. 
His  liability  arises  out  of  the  duty  which  the  law  imposes  upon  him  to  avoid  acts  in  their 
nature  dangerous  to  the  lives  of  others.  He  is  liable,  therefore,  though  the  drug  with  such 
label  mav  have  passed  through  many  intermediate  sales  before  it  reached  the  hands  of  the 
person  injured.  Thomas  v.  Winchester,  2  Sold.  (N.  Y.)  397.  See  also  Fleet  v.  HoUenkemp, 
13  B.  INlonr.  (Ky.)  219.     Piper  v.  Menifee,  12  Ibid.  465  ;  Hope  v.  Alley,  9  Tex.  394. 


6S  CONSEQUENTIAL    DAMAGES.  [CH.    III. 

great  particularity  in  the  declaration.  But  in  other  cases  it  is 
necessary  to  state  the  damages  resulting  from  the  breach  of  con- 
tract specially  and  circumstantially,  in  order  to  apprise  the  de- 
fendant of  the  facts  intended  to  be  proved,  or  the  plaintilf  will 
not  be  permitted  to  give  evidence  of  such  damages  on  the 
trial."  * 

So  in  an  action  for  a  nuisance,  resulting  from  an  obstruction 
to  a  water-course,  caused  by  the  erection  of  a  mound  of  earth, 
it  appearing  that  the  defendants  did  not  erect  the  mound  in  a 
way  to  obstruct  the  course,  but  that  the  earth  had  mouldered 
and  been  trodden  down  by  third  persons  so  as  to  intercept  the 
water,  the  court  said  that  the  evidence  did  not  support  the  dec- 
laration. "  The  statement  in  the  declaration  is,  that  the  rub- 
bish itself  was  placed  by  the  company  in  a  situation  such  as  to 
obstruct  the  ditch.  It  is,  however,  the  elements  and  the  boys 
which  have  changed  its  position  and  caused  it  to  obstruct  the 
ditch.  It  was  not  the  immediate  act  of  the  defendants,  but  a 
consequential  injury  that  occasioned  the  obstruction."! 

But  supposing  the  damages  properly  and  completely  averred, 
the  question  yet  remains ;  for  though  fully  alleged,  the  right  to 
recover  is  still  to  be  determined. 

Profits.  —  It  is  very  difficult  to  group  the  cases  together,  as 
each  turns  generally  on  its  own  merits ;  but  we  will  first  ex- 
amine to  what  extent  the  loss  of  prospective  profits  is  consid- 
ered a  subject  of  compensation.^  In  the  civil  law,  we  have  seen 
that  they  are  generally  allowed ;  but  the  tendency  of  our  law 
is  to  a  contrary  result,  though  this  is  by  no  means  a  rule  with- 
out exception.^ 

Where  the  plaintiff  bought  the  unexpired  term  of  a  lease  for 
£270,  and  paid  a  deposit  of  <£54,  the  title  proving  defective  the 
plaintiff  insisted  on  recovering  as  damages,  not  only  his  deposit, 
but  damages  sustained  by  the  loss  of  the  bai'gain,  and  also  by 

*  See,  to  same  point,  Deforest  v.  Leete,  16         t  Fitzsimons  v.  Inglis,  5  Taunt.  534. 
Johns.  122. 


1  It  may  be  generally  observed,  in  reference  to  the  loss  of  profits  claimed  as  damages,  both 
in  tort  and  contract,  what  will  be  repeatedly  seen  in  special  classes  of  actions,  such  as  those 
against  carriers  and  those  between  vendor  and  vendee,  that  in  some  cases  the  market  value  of 
the  property  as  to  which  the  claim  is  made  includes  and  represents  the  profit,  but  in  other 
cases,  the  profit  is  the  expected  gain  from  a  particuhvr  liargain  or  adventure  which  is  frustrated 
by  the  breach  or  default  complained  of.  When  the  liability  fur  profits  is  established,  the  stand- 
ard for  their  measurement  is  in  the  former  case  comparatively  uniform,  in  the  latter  it  will  de- 
pend greatly  on  the  circumstances. 

-  Where  damages  are  claimed  for  loss  of  profits  on  a  contract,  the  plaintiff  "is  as  much 
bound  to  prove  them  as  he  is  to  prove  the  contract  itself.  The  jury  cannot  be  asked  to  guess. 
They  are  to  try  the  case  on  evidence,  not  upon  conjecture."  Lentz  v.  Choteau,  42  Penn.  435. 
(Opinion  of  the  Court  per  Strong,  J.) 


%    CH.    III.]  CONSEQUENTIAL    DAMAGES.  69 

reason  of  his  having  sold  out  stocks  to  pay  the  purchase  money ; 
and  the  jury  gave  a  verdict  for  £74  155.  ^d.,  being  the  de- 
posit with  interest,  and  £20  extra  damages.  But  on  mo-  [09] 
tion  a  new  trial  was  ordered  as  to  the  loss  of  the  bargain  ; 
and  De  Grey,  C.  J.,  said,  "  Upon  a  contract  for  a  purchase,  if 
the  title  proves  bad,  and  the  vendor  is,  without  fraud,  incapable 
of  making  a  good  one,  I  do  not  think  that  the  purchaser  can  be 
entitled  to  any  damages  for  the  fancied  goodness  of  the  bar- 
gain which  he  supposes  he  has  lost."  And  as  to  the  sale  of  the 
stocks,  Blackstone,  J.,  after  remarking  that  the  facts  did  not 
show  any  loss,  said,  "  Not  that  it  is  material ;  for  the  plaintiff 
had  a  chance  of  gaining  as  well  as  losing  by  a  fluctuation  of  the 
prices."  *  This  case  has  frequently  been  referred  to  as  amount- 
ing to  a  general  denial  of  a  right  to  recover  profits.  But  it  is 
not  an  authority  to  that  extent ;  it  is  put  by  Mr.  J.  Blackstone, 
in  his  opinion,  on  the  ground  that  "  contracts  of  this  kind  are 
merely  upon  condition,  frequently  expressed,  but  always  implied, 
that  the  vendor  has  a  good  title."  ^  And  where  the  grantor  in 
such  case  has  ftdl  knowledge  that  he  has  not  title,  damages  re- 
sulting from  the  loss  of  the  bargain  have  been  allowed.! 

Early  Cases.  —  The  early  cases,  in  both  the  English  and 
American  courts,  generally  concurred  in  denjdng  profits  as  any 
part  of  the  damages  to  be  compensated,  and  that,  whether  in 
cases  of  contract  or  of  tort.  So  in  a  case  of  illegal  capture, 
Mr.  Justice  Story  rejected  the  item  of  profits  on  the  voyage, 
and  held  this  general  language  :  "  Independent,  however,  of  all 
authority,  I  am  satisfied  upon  principle  that  an  allowance  of 
damages  upon  the  basis  of  a  calculation  of  profits,  is  inadmis- 
sible. The  rule  would  be  in  the  highest  degree  unfavorable  to 
the  interests  of  the  community.  The  subject  would  be  involved 
in  utter  uncertainty.  The  calculation  would  proceed  upon  con- 
tingencies, and  would  require  a  knowledge  of  foreign  markets 
to  an  exactness,  in  point  of  time  and  value,  which  would  some- 
times present  embarrassing  obstacles.  Much  would  depend 
upon  the  length  of  the  voyage  and  the  season  of  the  arrival, 
much  upon  the  vigilance  and  activity  of  the  master,  and  much 
upon  the  momentary  demand.  After  all  it  would  be  a  calcula- 
tion upon  conjectures,  and  not  upon  facts.     Such  a  rule,  there- 

*  Flureau  v.  Thornhill,  2  W.  Black.  1078.        ports,  850 ;  and  see  Bitner  v.  Brough,  11  Penn. 
t  Robinson   v.  Harmau,   1    Exchequer  Re-     State  R.  127. 

1  The  rule  in  this  case  does  not  apply  to  an  executed  contract.     Lock  v.  Furze,  1  L.  R.  (C. 
P.)  441. 


70  CONSEQUENTIAL   DAMAGES.  [CH.    III.   / 

fore,  has  been  rejected  by  courts  of  law  in  ordinary  cases ; 
[70]  and  instead  of  deciding  upon  the  gains  or  losses  of  parties 
in  particular  cases,  a  uniform  interest  has  been  applied  as 
the  measure  of  damages  for  the  detention  of  property."  *  ^ 

So  where  a  privateer  had  improperly  detained  a  merchant 
vessel,  and  taken  out  her  crew,  in  consequence  of  which  she 
was  lost,  —  it  was  held  by  the  Supreme  Court  of  the  United 
States,  that  the  owners  of  the  privateer  were  liable  only  for  the 
value  of  the  vessel,  the  prime  cost  of  the  cargo,  with  all  charges, 
and  the  premium  of  insurance.!^ 

So  in  the  same  court,  where  a  privateer  had  improperly 
boarded  a  vessel  and  taken  away  her  papers,  in  consequence  of 
which  her  voyage  was  broken  up,  it  was  held  that  the  owners 
were  not  liable  for  the  loss  of  profits  on  the  intended  voyage, 
nor  for  loss  by  deterioration  of  the  cargo  which  was  not  caused 
by  the  improper  conduct  of  the  captors  ;  and  it  was  said,  "  The 
prime  cost  or  value  of  the  property  lost  at  the  time  of  the  loss, 
and,  in  case  of  injury,  the  diminution  in  value  by  reason  of 
such  injury,  with  interest  upon  such  valuation,  afford  the  true 
measure  of  damages.  This  rule  may  not  seem  a  complete  in- 
demnity for  all  possible  injuries ;  but  it  has  certainly  a  general 
applicability  to  recommend  it,  and  in  almost  all  cases  will  give  a 
fair  and  just  recompense."  The  suit  was  against  the  owners, 
who  were  constructively  liable ;  and  it  was  admitted  "  that  if  it 
had  been  against  the  original  wrong-doers,  it  might  be  proper  to 
go  yet  further,  and  visit  upon  them,  in  the  shape  of  exemplary 
damages,  the  proper  punishment  which  belongs  to  lawless  mis- 
conduct."t  And  in  a  similar  case,§  the  same  principle  was  ap- 
plied to  a  claim  for  damages  for  loss  of  a  market. 

So  in  Massachusetts,  in  an  action  of  trespass  against  a  deputy 
sheriff,  for  taking  a  schooner  of  the  plaintiff  under  an  attach- 
ment against  a  third  party,  there  being  some  evidence  that  she 
was  preparing  for  a  voyage,  and  there  being  no  malice  on  the 
part  of  the  defendant,  the  jury  were  instructed  to  estimate  her 
value  at  the  time  of  taking,  and  "  the  additional  damage 
[71]  sustained,  if  any."     But  it  was  held  by  the  Supreme  Court, 

*  The  Scliooner  Lively,  1  Gallison,  314  and  |  The  Amiable  Nancy,  3  Wheat.  546  and 

325.  558. 

t  The  Anna  Maria,   2   Wheat.   327.      See  §  La  Amistad  de  Rues,  5  Wheat.  385. 
idso,  Delcol  V.  Arnold,  3  Dall.  333. 

1  See  Fleming  v.  Beck,  48  Penn.  St.  309,  where  the  language  of  the  text  is  cited  and  ap- 
proved. 

'■^  So  in  an  action  against  the  master  of  a  vessel  for  breaking  up  a  whaling  voyage  and  dis- 
posing of  her,  the  possible  profits  of  the  voyage  cannot  be  considei-ed.  Brown  v.  Smith,  12 
Cush,  (Mass.)  366. 


CH.    III.]  CONSEQUENTIAL    DAMAGES.  71 

that  this  would  not  justify  the  jury  in  assessing  damages    for 
the  breaking  up  of  the  voyage* ^ 

So  in  a  case  of  collision  between  vessels,  it  has  been  held  that 
the  owner  of  the  injured  vessel  cannot  recover  for  profits  on 
the  voyage  broken  up  by  the  accident.  In  such  a  case  the 
Supreme  Court  of  the  United  States  said,  "  It  has  been  re- 
peatedly decided  in  cases  of  insurance,  that  the  insured  cannot 
recover  for  the  loss  of  probable  profits  at  the  port  of  destina- 
tion, and  that  the  value  of  the  goods  at  the  place  of  shipment 
is  the  measure  of  compensation.  There  can  be  no  good  reason 
for  establishing  a  different  rule  in  cases  of  loss  by  collision.  It 
is  the  actual  damage  sustained  by  the  party  at  the  time  and 
place  of  injury  that  is  the  measure  of  damages."  f  ^ 

Contingent  Profits  not  allowed.  —  And  the  same  general  lan- 
guage, denying  the  admissibility  of  profits,  was  held  by  the 
Supreme  Court  of  New  York  in  an  action  brought  for  the  price 
of  a  steamboat.  The  defendant  showed  that  part  of  the  ma- 
chinery w^as  unsound,  and  proved  other  imperfections  by  which 
considerable  delay  was  caused ;  and  claimed  to  deduct  from  the 
contract  price  of  the  boat,  not  only  the  sum  necessary  to 
remedy  the  actual  defects,  but  also  loss  of  profits  upon  the  trips 
that  might  have  been  run  during  the  time  the  vessel  was  delayed 
on  account  of  the  imperfections  in  the  construction,  having 
proved  that  each  trip  would  bring  one  hundred  dollars  net 
profits.  But  it  was  disallowed ;  and  the  court,  citing  the  lan- 
truao-e  of  Pothier.  said,  "  In  short,  it  will  be  seen  that  on  the 
subject  in  question,  our  courts  are  more  and  more  falling  into 
the  track  of  the  civil  law."  %  ^ 

*  Boyd  V.  Brown,  17  Pick.  453.  \  Blanchard  v.  Ely,  21  Wendell,  342. 

t  Smith  I'.  Condry,  1  Howard,  28. 

^  So  in  the  same  State,  in  an  action  by  the  charterer  of  a  vessel  against  a  gas  company  for 
laving  a  gas  pipe  by  which  the  navigation  of  the  river  was  unlawfully  obstructed  to  his  dam- 
age, the  damages  were  restricted  to  his  expenses  in  getting  over  the  obstruction,  and  did  not 
include  the  delav  in  his  business  or  other  consequential  damages.  Benson  v.  Maiden  and  Mel. 
Gas-light  Co.  6  Allen,  149.  See  Hunt  v.  The  Hoboken  Land  and  Improvement  Co.  3  E.  D. 
Smith's  (N.  Y.)  C.  P.  R.  144. 

'■^  So  in  Minor  v.  Steamboat  Picayune  No.  2,  13  La.  Ann.  564.  But  late  decisions  tend  to 
include  profits  lost  as  a  necessary  consequence  of  the  collision  in  the  damages  for  which  the 
otfending  party  is  liable.  Heard  v.  Holman,  19  C.  B.  (N.  S.)  1;  Steamboat  Narragansett, 
Olcott,  388.     See  McKnight  v.  Ratcliffe,  44  Penn.  156  ;  and  see  post,  469,  note  1. 

^  "  Had  the  defendants  in  the  case  of  Blanchard  v.  Ely  taken  the  ground  that  they  were 
entitled  to  recoup,  not  the  uncertain  and  contingent  profits  of  the  trips  lost,  but  sucli  sum  as 
they  could  have  realized  by  chartering  the  boat  for  those  trips,  I  think  their  claim  must  have 
been  sustained.  The  loss  of  the  trips  which  had  certainly  occurred,  was  not  only  the  direct 
but  the  immediate  and  necessary  result  of  the  breach  of  the  plaintiff's  contract."  Griffen  v. 
Colver,  16  N.  Y.  496,  per  Selden,  J.     See  Redon  v.  Catfin,  11  La.  Ann.  695. 

Where,  in  an  action  on  a  bond  given  to  obtain  the  discharge  of  a  vessel  attached  under  a 
lien  for  repairs,  the  defendants  sought  to  recoup  the  damages  sustained  by  them  from  the 
plaintifif's  delay  in  completing  the  contract,  it  was  held,  following  tliis  authority,  that  the  rent 


72  CONSEQUENTIAL    DAMAGES.  [CH.    III. 

It  has  been  heretofore  stated  that  profits  are  by  no  means 
imiformly  denied  by  the  civil  law  ;  and,  for  the  reasons  which  I 
have  already  given,  I  very  much  doubt  whether  a  resort  to 
either  the  civil  or  the  French  law  will  tend  to  facilitate  our 
efforts  to  reduce  our  measure  of  damages  to  fixed  rules,  unless 
care  is  had  to  keep  in  mind  the  arbitrary  discretion  by  which 
their  sagacious  principles  are  often  controlled  and  broken  down. 

In  a  recent  case  in  New  York,  where  the  defendant  had  con- 
tracted to  furnish  a  steam-engine  for  the  plaintiffs,  who 
[72]  were  makers  of  oil,  and  failed  to  comply  with  his  contract, 
the  plaintiffs  sought  to  recover  as  consequential  damages, 
the  profits  they  could  have  made  in  the  manufacture  of  oil,  had 
the  machinery  been  completed  and  put  up  within  the  time 
limited  by  the  contract.  But  the  claim  was  disallowed  ;  and 
the  recovery  was  limited  to  ilie  loss  of  the  use  of  the  plaintiff's 
iiiill  and  other  machinery^  the  fuel  consumed,  the  delay  of  the  work- 
men employed  for  the  purpose  of  carrying  on  the  business,  and 
the  interest  on  the  amount  expended  in  purchasing  stock  for 
the  mill.*  1 

So  in  an  action  brought  on  a  covenant  to  keep  a  mill-dam  in 

*  Freeman  v.  Clute,  3  Barb.  S.  C.  E.  424.  it  interest  on  the  investment  ?  See  this  case 
But  what  is  meant  by  "  the  loss  of  the  use  of  commented  on  in  Davis  v.  Talcott,  14  Barb, 
the  plaintiff's  mill  and  other  machinery  ?  "   Is     S.  C.  K.  611,  where  profits  were  allowed. 

of  the  property,  that  is  the  price  which  would  have  to  be  paid  for  the  charter  of  a  similar  boat 
during  the  period  of  unnecessaiy  detention,  afforded  the  true  measure  of  damages,  and  that 
the  probable  earnings  or  profits  of  the  vessel  were  too  uncertain  to  form  a  rule  of  damages. 
Kogers  v.  Beard,  36  Barb.  31  ;  20  How.  Pr.  E.  98. 

So  where  the  action  was  for  the  seizure  and  detention  of  a  steamboat  by  an  attachment 
which  was  discharged,  the  measure  of  damages  was  held  to  be  the  actual  damage  only  sustained 
bv  the  seizure.  The  jury  could  not  be  permitted  to  speculate  as  to  what  might  or  might  not 
have  been  the  earnings  of  the  boat  during  the  period  of  the  seizure.  Callaway  IMining  and 
Manufacturing  Co.  v.  Clark,  32  Mo.  305. 

Although  subordinate  considerations  may  require  to  be  referred  to  in  many  cases,  the  essen- 
tial idea  of  compensation  will  always  be  found  to  furnish  a  general  or  fundamental  rule  in  ref- 
erence to  profits,  as  it  does  to  all  other  questions  of  damage,  except  such  as  are  exemplary. 
Thus,  in  an  action  to  recover  money  for  work  on  a  building  contract,  if  the  building  was  erected 
for  the  defendant's  own  use,  or  if  it  was  intended  to  be  rented,  and  in  the  one  case  the  defend- 
ant was  deprived  of  its  occupation,  and  in  the  other  of  its  rents,  he  was  held  entitled  to  recoup 
accordingly,  in  the  one  case  what  its  use  would  have  been  worth,  measured  by  the  standard  of 
rents  of  ^uch  buildings,  or  in  the  other  what  it  could  actually  have  been  rented  for.  But  in 
the  latter  case,  if  he  did  not  in  fact  lose  any  opportunity  of  renting  in  consequence  of  the 
delay,  he  could  not  recoup  any  loss  of  rent.  Wagner  v.  Corkhill,  40  Barb.  175.  See  Berry  v. 
Dwi'nel,  44  Maine,  255  ;  Eed  v.  City  Council  of  Augusta,  25  Geo.  387  ;  Sherman  v.  Eoberts,  1 
Grant's  Cases  (Penn.)  261. 

1  So  also  Taylor  v.  Maguire,  13  Mo.  517  ;  12  Mo.  313  ;  -poi^t,  76,  note.  See  Horner  v.  Wood, 
16  Barb.  (N.  Y.)  386.  And  where  one  had  agreed  to  furnish  a  steam-engine  by  a  certain  day 
to  drive  a  planing  and  sawing  mill,  and  through  his  default  the  mill  was  at  a  stand-still  for  a 
time  for  want  of  the  engine  after  the  stipulated  day,  a  fair  price  for  the  use  of  the  engine  and 
machinerij  during  the  time  lost  was  allowed,  though  a  claim  for  loss  of  net  profits  calculated 
from  the  amount  of  lumber  the  mill  might  have  cut  and  planed,  taking  into  account  the  usual 
prices  for  planing  over  running  expenses  and  wear  and  tear,  was  rejected  as  too  uncertain. 
Grifien  v,  Colver,  16  N.  Y.  489.  In  this  case  the  rule  was  succinctly  declared  that  "  profits 
which  would  have  been  realized  but  for  the  defendant's  default  are  recoverable,  those  which 
are  speculative  or  contingent  are  not."    Ibid.  491.     Seepos^,  76,  note. 


CII.    in.]  CONSEQUENTIAL   DAMAGES.  73 

repair,  it  was  held  in  Massachusetts  that  the  plaintifT  was  enti- 
tled to  recover  the  expense  incurred  in  repairing  the  dam,  l)ut 
not  loss  of  profits  in  business.*^ 

Loss  IN  Market,  etc.,  Value  Compensated.  —  It  is  clear,  how- 
ever, that  future  profits  are  sometimes  allowed  hy  our  law,^  as 
will  be  seen  hereafter,  in  regard  to  contracts  to  transport  goods 
to  a  particular  place,!  as  well  as  in  actions  brought  on  agree- 
ments for  the  sale  and  delivery  of  chattels.  In  the  former  case, 
the  diflerence  in  value  between  the  price  at  the  point  where  the 
goods  are  and  the  place  where  they  were  to  be  delivered,  is 
taken  as  the  measure  of  damages,  which,  in  fact,  amounts  to  an 
allowance  of  profits ;  and  in  the  latter  case,  a  similar  result  is 
had  by  the  application  of  the  rule  which  gives  the  vendee  the 
benefit  of  the  rise  of  the  market  price.  And  so,  as  we  shall  see 
hereafter,  in  an  action  by  a  principal  against  an  agent  for  not 
shipping  goods  to  a  particular  port,  their  value  at  that  port  has 
been  held  the  measure  of  remuneration.t  Nor  would  it  seem 
proper  that  the  question  should  be  governed  by  the  analogies 
of  the  law  of  insurance.  It  is  very  reasonable  that  an  insurance 
on  cargo  should  not  usurp  the  office  of  an  insurance  on  profits. 

Under  a  policy  on  the  plaintiff's  interest  in  an  inn  and 
offices,  he  cannot,  on  the  inn  and  offices  being  partly  burned, 
recover  against  the  insurers  for  loss  sustained  by  his  hiring 
other  premises  while  his  own  are  being  repaired,  and  by 
the  refusal  of  persons  to  go  to  the  inn  while  under  repair,  [73] 
the  insurers  having  reinstated  the  premises  in  proper 
time  ;§  the  court  saj-ing,  "  If  a  ^Darty  w^ould  recover  such  profits 
as  these,  he  must  insure  them  qua  pro/its"  But  this  does  not 
touch  the  question  we  are  now  considering.  The  denial  of 
profits  by  way  of  damages  must  evidently  be  taken  with  limi- 
tations. Chancellor  Kent  says,  in  his  excellent  Commentaries,! | 
that  speculative   profits    are    not   allowed.     It  is  difficult  to  say 

*  Thompson  r.  Shattuck,  2  Met.  615.  §  In  re  Wright,  1  Ad.  &  El.  621. 

t  Bracket  v.  McNair,  14  J.  R.  170.  ||  Vol.  ii.  5th  ed.  p.  480,  in  notes. 

I  Bell  V.  Cunningham,  .3  Peters,  69. 

1  In  an  action  for  breach  of  covenant  in  evicting  the  plaintiff,  the  loss  of  probable  profits  of 
crops  which  might  have  been  raised  but  had  not  been  planted  are  quite  too  remote.  Olmstead 
r.  Burke,  25  111.  86.  See  Shaw  r.  Wallace,  1  Dutch.  (N.  J.)  45.3,  where  profits  were  disallowed 
in  an  action  for  violation  of  a  mining  license.  But  for  breach  of  a  covenant  to  keep  .a  mill  in 
good  repair,  the  tenant  is  entitled  to  remuneration  for  all  exjienditurcs  of  money,  time,  and 
labor  made  in  repairing  the  mill,  also  fur  the  loss  of  the  use  of  the  premises  during  the  mak- 
ing of  the  repairs  necessary  to  put  them  in  the  condition  in  which  the  landlord  should  have 
kept  them,  and  for  all  direct  damages  resulting  from  the  neglect  of  the  lessor  to  make  such 
repairs,  and  which  it  was  not  in  the  power  of  the  tenant  easily  to  have  avoided.  MiddlckaufF 
V.  Smith,  1  Md.  34.3. 

2  See  Waters  v.  Towers,  8  Exch.  401. 


74  CONSEQUENTIAL   DAMAGES.  [CH.    III. 

precisely  what  is  meant  by  this  jDhrase.  The  whole  subject  has 
been  recently  considered  by  the  Supreme  Court  of  New  York,  and 
an  able  attempt  made  to  draw  the  true  line  between  those  pro- 
fits which  are  to  be  allowed,  and  those  wdiich  must  be  rejected. 

Direct  Profits  Allowed.  —  In  an  action  of  covenant  brought 
against  the  authorities  of  the  city  of  Brooklyn,  it  appeared  that 
in  January,  1836,  an  agreement  was  entered  into  between  the 
defendants  and  the  plaintiffs,  by  which  the  latter  agreed  to  fur- 
nish and  deliver  marble  to  build  a  City  Hall  in  Brooklyn,  from 
Kain  &  Morgan's  quarry,  in  Eastchester.  The  defendants  were 
to  pay  |271,600  in  different  sums,  as  the  work  proceeded.  In 
March,  1836,  the  plaintiffs  entered  into  a  covenant  with  Kain 
&  Morgan,  by  which  the  latter  were  to  furnish  the  marble  in 
question,  for  which  the  plaintiffs  were  to  pay  them  $112,395 
at  the  same  time  that  the  plaintiffs  w^ere  to  receive  their  pay- 
ments from  the  defendants,  and  in  the  proportion  which  the 
above  principal  sums  bore  to  each  other.  The  plaintiffs  proved 
the  delivery  of  the  marble  under  their  contract  with  the  de- 
fendants, till  July,  1837  ;  when  the  latter  refused  to  receive  any 
more  marl^le,  although  the  plaintiffs  were  ready  to  proceed. 
The  entire  quantity  of  marble  necessary  to  fulfill  the  plaintiff's 
contract  was  88,819  feet.  At  the  time  the  work  w^as  suspended, 
the  plaintiffs  had  delivered  14,779  feet,  for  which  the  contract 
price  was  paid.  The  plaintiffs  then  had  on  hand  at  Kain  & 
Morgan's  quarry,  about  3,308  feet,  ready  for  delivery ;  but  this 
was  not  of  much  value  for  other  buildings,  and  would  probably 
not  bring  over  two  shillings  per  foot.  It  was  proved  that  had 
the  work  progressed  with  ordinary  diligence,  it  would  have 
taken  the  plaintiffs  about  five  years  to  complete  their  con- 
[74]  tract ;  and  they  then  proved  that  the  difference  between 
the  cost  of  the  marble  to  them,  and  the  price  to  be  paid  for 
it  in  1836,  was  about  20  per  cent. ;  and  that  it  fluctuated 
between  that  rate  and  40  per  cent,  during  the  four  successive 
years  to  1840.  That  the  ordinary  profit  calculated  on  by  mas- 
ter stone-cutters,  was  from  10  to  20  per  cent.;  and  that  15  per 
cent,  was  a  fair  living  profit.  All  this  evidence  as  to  profits  was 
objected  to,  but  admitted  by  the  circuit  judge  (Kent),  under 
exceptions.  The  defendants  requested  the  circuit  judge  to  in- 
struct the  jury  that  no  damages  "  should  be  allowed  on  account 
of  any  supposed  profits  which  the  plaintiffs  might  have  made 
out  of  the  unfinished  work,  and  that  the  damages  allowed  should 
be  confined  to  the  actual  loss  which  the  plaintiffs  had  sus- 
tained."   This  the  circuit  judge  refused  to  do  ;  and  he  charged,  — 


en.   III.]  CONSEQUENTIAL   DAMAGES.  75 

"  That  the  jury  should  allow  the  plaintiffs  as  much  as  the  performance  of  the 
contract  would  have  benefited  them ;  that  the  plaintiffs  were  entitled  to  recover 
for  the  unfinished  marble  not  accepted,  subject  to  a  deduction  of  what  should  be 
deemed  its  fair  market  value  ;  that  the  jury  should  confine  the  damages  to  the 
loss  of  the  plaintiffs,  but  that  the  benefit  or  pi'ofits  which  they  would  have  re- 
ceived from  the  actual  performance  constituted  such  loss.  That  the  defendants 
ought  to  be  allowed  what  the  jury  should  think  just  as  to  interest  on  the  outlays 
of  the  plaintiffs,  also  what  the  jury  might  think  just  for  the  risk  of  transportation, 
and  the  reasonable  value  of  the  marble  unaccepted  and  unquarried.  As  to  dam- 
ages on  the  rough  marble,  to  be  delivered  by  Kain  &  Morgan,  it  appears  by  the 
contract,  that  the  plaintiffs  were  obliged  to  purchase  it  from  this  (juarry.  The 
plaintiffs'  contract  with  Kain  &  Morgan,  if  made  in  good  faith,  was  entered  into 
as  a  reasonable  part  of  the  performance  by  the  plaintiffs  of  their  own  contract ; 
and  if  the  defendants  by  stopping  the  work,  obliged  the  jjlaintiffs  to  break  their 
contract  with  Kain  &  Morgan,  then  the  damages  on  the  latter  ought  to  be  allowed 
to  the  plaintiffs,  who  would  be  responsible  to  Kain  &  Morgan  for  the  same.  The 
jury  are  to  give  the  difference  between  the  contract  price,  and  what  it  would  cost 
Kain  &  INIorgan  to  deliver  the  article,  deducting  the  value  of  it  to  them,  and 
making  all  proper  allowances,  as  in  the  case  of  the  princijDal  contract.  In  fixing 
the  damages  to  be  allowed  the  plaintiffs,  the  jury  are  to  take  things  as  they  were 
at  the  time  the  work  was  suspended,  and  not  allow  for  any  increased  benefits  they 
would  have  received  from  the  subsequent  fall  of  wages,  or  subsequent  circum- 
stances." 

The  jury  found  a  verdict  in  favor  of  the  plaintiffs  for  $72,999. 
The  defendants  moved  for  a  new  trial ;  and  Nelson,  C.  J.,  deliv- 
ering the  opinion  of  the  Court,  after  noticing  that  the 
damages  for  marble  on  hand,  ready  to  be  delivered,  were  [75] 
not  made  a  matter  of  discussion  on  the  argument  —  as  to 
the  claim  for  damages  in  respect  to  the  remainder  of  the  marble 
which  the  plaintiffs  had  agreed  to  furnish,  but  which  they  were 
prevented  from  furnishing  by  the  suspension  of  the  work  in 
July,  1837,  and  as  to  the  claim  for  profits  —  said,  — 

"  It  is  not  to  be  denied  that  there  are  profits  or  gains  derivable  from  a  contract, 
which  are  uniformly  rejected  as  too  contingent  and  speculative  in  their  nature, 
and  too  dependent  upon  the  fluctuation  of  markets  and  the  chances  of  business, 
to  enter  into  a  safe  or  reasonable  estimate  of  damage.  Thus,  any  supposed  suc- 
cessful operation  the  party  might  have  made,  if  he  had  not  been  prevented  from 
realizing  the  proceeds  of  the  contract,  at  the  time  stipulated,  is  a  consideration 
not  to  be  taken  into  the  estimate.  Besides  the  uncertain  and  contingent  issue  of 
such  an  operation,  in  itself  considered,  it  has  no  legal  or  necessary  connection 
with  the  stipulations  between  the  parties,  and  cannot,  therefore,  be  presumed  to 

have  entered   into  their  consideration   at  the  time  of   contracting 

When  the  books  and  cases  speak  of  the  profits  anticipated  from  a  good  bargain, 
as  matters  too  remote  and  uncertain  to  be  taken  into  the  account  in  ascertaining 


76  CONSEQUENTIAL   DAMAGES.  [CH.    III. 

the  true  measure  of  damages,  tliey  usually  have  reference  to  dejiendent  and  col- 
lateral engagements  entered  into  on  the  faith  and  in  ex[)ectation  of  the  perform- 
ance of  the  principal  contract."  ^ 

"  But  profits  or  advantages  vs^hich  are  the  direct  and  immediate  fruits  of  the 
contract  entered  into  between  the  parties,  stand  upon  a  different  footing,  Tliese 
are  part  and  parcel  of  the  contract  itself — entering  into  and  constituting  a  por- 
tion of  its  very  elements,  something  stipulated  for,  the  right  to  tlie  enjoyment  of 
vphich  is  just  as  clear  and  plain  as  to  the  fulfillment  of  any  other  stipulation. 
They  are  presumed  to  have  been  taken  into  consideration  and  deliberated  upon, 
before  the  contract  was  made,  and  formed,  perhaps,  the  only  inducement  to  the 
arrangement."*  "If  there  was  a  market  value  of  the  article  in  this  case,  the 
question  would  be  a  simple  one.  As  there  is  none,  however,  the  parties  will  be 
obliged  to  go  into  an  inquiry  as  to  the  actual  cost  of  furnishing  the  article  at  the 
place  of  delivery,  and  the  court  and  jury  should  see  that  in  estimating  this 
amount,  it  be  made  on  a  substantial  basis,  and  not  left  to  rest  on  the  loose  and 
speculative  opinions  of  witnesses."  And  Bronson,  J.,  said,  "  As  the  marble  had 
no  market  value,  the  question  of  profits  involves  an  inquiry  into  the  cost  of  the 
rough  material  in  the  quarry,  and  the  expense  of  raising,  delivering,  and  trans- 
porting it  to  the  place  of  delivery." 

And  the  learned  chief  justice  fortified  this  allowance  of 
j)rofits,  by  reference  to  the  civil  law,  and  the  analogies  derived 

from  the  cases  in  our  0"\vn  law,  which  we  shall  hereafter 
[76]  have  occasion   to   consider,  where   upon  non-performance 

of  contracts  for  the  sale  and  delivery  of  chattels,  the  mar- 
ket price,  which  of  course  includes  profits,  is  made  the  measure 
of  compensation.t  ^ 

*  See  this  langtiage  cited  with  approbation  assume,  if  improvidently  entered  into  ;  and  on 

in  Lawrence  v.   Wardwell,  6   Barb.   S.  C.  R.  this  latter  point  a  new  trial  was  ordered.    We 

423.  shall  have  occasion  to  consider  these  parts  of 

t  He  further  said,  that  where  the  contract,  this  decision  wlien  we  come  to  the  subject  of 

as  in  this  case,  is  broken  before  the  arrival  of  continuing  agreements,  and  evidence  with  ref- 

the  time  for  full  performance,  and  the  oppo-  erence   to   damages.      Mr.  Justice   Beardsley 

site  party  elects  to  consider  it  in  that  light,  dissented,   holding   that    the    fluctuations    in 

the  market  price  on  the  day  of  the  breach  is  price  during  the  five  years  which  the  contract 

to  govern   tlie  assessment  of  damages — that  was  to  run,  should  be  taken  into  account.    He 

they  should  be  settled  and  ascertained  accord-  concurred  as  to  the  allowance  of  profits,  and 

ing  to  the  existing  state  of  the  market  at  the  as   to   the   disregard   of    the   sub-contract   of 

time  the  cause  of  action  arose,  and  not  at  the  Kain    &   Morgan.      Masterton   v.   Mayor   of 

time  fixed  for  full  ])erformance.    And  the  sub-  Brooklyn,  7   Hill,  62,     See  also  N.  Y.  &  H. 

contract  with  Kain  &  Morgan  was  laid  wholly  R.  R.  Co.  v.  Story,  6  Barb.  S.  C.  R.  419,  and 

out  of  view,  as  one  in  or  over  which  the  de-  Scaton  v.  Second  Municipality,  3  La.  Ann. 

fcndants  had  neither  participation  nor  control,  R.  45,  where  the  authority  of  this  decision  is 

and  which  they  should  not  be  compelled  to  recognized. 

1  See  Lowenstein  v.  Chappell,  30  Barb.  (N.  Y.)  241. 

^  The  principles  of  this  case  as  to  the  allowance  of  profits  are  now  well  established.  Shep- 
ard  r,  Milwaukee  Gas-light  Co.  1.5  Wis.  318;  Hinckley  v.  Bcckwith,  13  Wis.  31  ;  Story  v. 
The  New  York  &  Harlem  R.  R.  Co.  6  N.  Y.  85  ;  Fox  v.  Harding,  7  Cush.  (Mass.)  516  ;  The 
Philadelphia,  Wilmington  &  Baltimore  R.  R.  Co.  v.  Howard,  13  How.  80 V  ;  Thompsons. 
Jackson,  14  B.  Monroe  (Ky-),  114;  Cook  i\  Commissioners  of  Hamilton,  6  McLean's  C.  C. 
R.  612  ;  Hoy  v.  Gronoble,  34  Pcnn.  St.  9.  See,  also,  as  to  what  consecpiential  damages  are 
recoverable  for  breach  of  contract,  Chapin  v.  Norton,  6  McLean's  C.  C.  R.  500  ;  The  Coweta 
Talis  Manufacturing  Co.  v.  Rogers,  19  Ga.  417  ;  Mclvnight  v.  Ratcliffe,  44  Penn.  St.  156.    In 


CH.    Hi.]  CONSEQUENTIAL    DAMAGES.  77 

So  in  a  recent  and  similar  case,  the  plaintifis,  contractors, 
were  held  entitled  to  recover  from  the  defendants  the  profits  on 
the  constrnction  of  a  section  of  an  aqueduct,  the  work  having 
been  stopped  by  the  defendants  *  And  again,  when  a  mill  was 
prevented  from  being  run  by  reason  of  a  steam-engine  not  being 
furnished  for  it  according  to  contract,  the  profits  which  the  mill 
would  have  earned  during  the  time  of  its  being  stop])ed  were 
held  to  be  rightly  included  in  the  damages.f  ^  And  1  think  it 
may  well  be  doubted  whether  the  language  of  some  of  the  ear- 
lier American  cases  which  I  have  cited  has  not  pushed  the  rule 
beyond  the  true  line.t  ^  The  analogies  of  the  law  have  certainly 
not  been  regarded.  If  on  a  contract  to  deliver  goods  at  a  dis- 
tant point,  their  value  at  the  place  of  delivery  is  the  true  crite- 
rion ;  if  on  a  contract  for  the  sale  of  chattels,  the  market  price 
on  the  day  fixed  for  delivery  is  tlie  true  measure  of  damage,  it 
is  ditticult  to  assign  a  reason  why  the  same  rule  should  not  be 
applied  to  the  breaking  up  of  a  voyage  actually  commenced, 
nor  wdiy  the  victim  of  an  illegal  capture  should  be  limited  to 
the  prime  cost  of  his  cargo. 

Damages  Contemplated  by  both  Parties.  —  Indeed,  on  reviewing 
the  whole  subject,  it  seems  to  me  that  the  language  of  the  Lou- 
isiana Code  above  cited  expresses  the  true  rule  ;  and  that  it  is 
no  more  than  justice  that  a  defendant  in  default  should  be  com- 
pelled to  make  good  the  damages  sustained  by  his  breach  of 
contract,  "  which  were  contemplated,  or  may  reasonably  be  sup- 

*  Clark   V.   The   Mayor,  3  Barb.  S.  C.  K.  ground.      (This   case  -was   also   reversed,   on 

288  ;    reversed  in  error  on   another  point,  4  appeal,  on   another   ground.     12   N.  Y.   184, 

Comstock  338.     Vide pos«,  ch.  vii.  Ed.) 

t  Davis  V.  Tallcot,  14  Barb.   S.  -C.  R.  611.  1 1  am  gratified  to  find  this  remark  cited 

There  was  in  this  case  a  special  agreement  to  with  approbation  by  the  Supreme   Court  of 

l)av   the   specific   damages   claimed  ;    but  the  Alabama,  per  Chilton,  J.,  in  Donnell  v.  Jones, 

opinion    of    Taggart,   J.,   covers    the    whole  17  Ala.  689. 

a  late  case  in  Ohio,  the  defendant  had  agreed  to  make  to  the  plaintiff",  for  the  term  of  ten 
years,  a  lease  of  certain  lands  on  whicli  to  plant  and  cultivate  a  peach  orchard.  The  plaintiff 
took  possession  of  the  land,  but  the  defendant  failed  to  make  the  lease,  and  within  two  years 
from  the  time  of  the  plaintiff's  occupation  of  the  premises  caused  him  to  be  evicted.  Evi- 
dence of  the  probable  future  profits  of  the  lease  was  held  incompetent  in  deterniining  the 
plaintiff's  damages.  To  the  extent  that  they  depended  on  the  loss  of  tlie  lease,  its  market 
value  at  the  time  of  the  eviction,  subject  to  the  performance  of  the  contract  on  the  iihuntirt"s 
part,  furnished  the  standard  for  their  assessment.  If  it  had  no  general  market  value,  its  value 
should  be  ascertained  from  the  opinions  of  qualified  witnesses,  in  view  of  the  hazards  of  the 
business.     Rhodes  v.  Baird,  16  O.  St.  573. 

1  Strawn  v.  Cogswell,  28  111.  457.  See  Burrell  v.  New  York  &  S.aginaw  Solar  Salt  Co.  14 
Mich.  34;  Shcpard  v.  Milwaukee  Gas-light  Co.  15  Wis.  318,  and  Hinckley  v.  Beckwith,  13 
Wis.  31  ;  Dean  v.  White,  5  Iowa,  266.  For  the  application  of  the  rule  to  breaches  of  partner- 
ship agreements,  see  post,  95,  note  1. 

^  The  plaintiffs  can  recover  for  prospective  profits  only  where  they  have  been  prevented  from 
going  on  either  by  some  affirmative  act  of  the  defendant,  as  by  being  ordered  to  desist  trom 
the  work,  or  by  the  omission  to  perform  some  condition  precedent  to  its  further  prosecution,  as 
to  furnish  or  do  something  necessary  to  its  further  progress.  The  County  ot  Christian  v. 
Overholt,  18  xlL  223  ;  Palm  v.  The  Ohio  &  Mississippi  R.  R.  Co.  18  111.  217. 


78  CONSEQUENTIAL    DAMAGES.  [ciI.    III. 

posed  to  heave  entered  into  the  contemplation  of  the  parties,  at 
the  time  of  the  contract."  Such,  too,  are  the  recent  EngHsh 
decisions.  So  in  a  case  in  the  Court  of  Exchequer,*  where  the 
facts  were  as  follows  :  — 

The  plaintiffs  were  owners  of  a  steam-mill.  The  shaft  was 
broken,  and  they  gave  it  to  the  defendant,  a  carrier,  to  bring  to 
an  engineer,  to  serve  as  a  model  for  a  new  one.  On  making  the 
contract,  the  defendant's  clerk  was  informed  that  the  mill  was 
stopped,  and  that  the  shaft  must  be  sent  immediately.  He  de- 
layed its  delivery ;  the  shaft  was  kept  back  in  consequence  ;  and 
in  an  action  for  breach  of  contract,  they  claimed,  as  specific 
damages,  the  loss  of  profits  while  the  mill  was  kept  idle.  It  was 
held  that  if  the  carrier  had  been  made  aware  that  a  loss  of 
profits  would  result  from  delay  on  his  part,  he  would  have  been 
answerable.  But  as  it  did  not  appear  he  knew  that  the  want  of 
the  shaft  was  the  only  thing  which  was  keeping  the  mill  idle,  he 
could  not  be  made  responsible  to  such  an  extent.  The  court 
said,  — 

"  We  think  the  pro^Der  rule  in  such  a  case  as  the  present  is  this  :  where  two 
parties  have  made  a  contract  which  one  of  them  has  broken,  the  damages  which 
the  other  party  ought  to  receive  in  respect  of  such  breach  of  contract  should  be 
either  such  as  may  fairly  and  substantially  be  considered  as  arising  naturally, 
{.  e.  according  to  the  usual  course  of  things,  from  such  breach  of  contract  itself, 
or  such  as  may  reasonably  be  supposed  to  have  been  in  the  contemplation  of 
both  parties  at  the  time  they  made  the  contract,  as  the  probable  result  of  the 
breach  of  it.  Now,  if  the  special  circumstances  under  which  the  contract  was 
actually  made  were  communicated  by  the  plaintiff  to  the  defendant,  and  thus 
known  to  both  parties,  the  damages  resulting  from  the  breach  of  such  a  contract 
which  they  would  reasonably  contemplate,  would  be  the  amount  of  injury  which 
would  ordinarily  follow  from  a  breach  of  contract  under  these  special  circum- 
stances so  known  and  communicated.  But,  on  the  other  hand,  if  those  special 
circumstances  were  wholly  unknown  to  the  party  breaking  the  contract,  he,  at 
the  most,  could  only  be  supposed  to  have  had  in  his  contemplation  the  amount 
of  injury  which  would  arise  generally,  and  in  the  great  multitude  of  cases,  not 
affected  by  any  special  circumstance-,  for  such  a  breach  of  contract.  For  had 
the  special  circumstances  been  known,  the  parties  might  have  expressly  pro- 
vided for  the  breach  of  contract  by  special  terms  as  to  the  damage  in  that  case, 
and  of  this  advantage  it  would  be  very  unjust  to  deprive  them.  The  above 
principles  are  those  by  which  we  think  the  jury  ought  to  be  guided  in  estimating 
the  damages  arising  out  of  any  breach  of  contract." 

The  rule  laid  down  in  Hadley  v.  Baxendale  was  again  acted 
upon  in  a  very  recent  case.     The  defendant  had  contracted  to 

*  Hadley  v.  Baxendale,  9  Exch.  341  ;  s.  c.  26  Eng.  L.  &  E.  398. 


CH.    III.]  CONSEQUENTIAL   DAMAGES.  79 

build  a  ship,  which  was  to  be  delivered  to  the  plaintiff  on  the 
1st  of  August,  1854.  It  was  not  delivered  till  March,  1855. 
The  vessel  was  intended  by  the  plaintiffs  —  and  from  the  nature 
of  her  fittings  the  defendants  must  have  known  the  fact  —  for  a 
passenger  ship  in  the  Australian  trade.  Evidence  was  given 
that  freights  to  Australia  were  very  high  in  July,  August,  and 
September,  but  fell  in  October,  and  continued  low  till  May,  when 
the  vessel  sailed  ;  and  that  had  she  been  delivered  on  the  day 
named,  she  could  have  earned  £2,750  more  than  she  did.  On 
the  other  hand  it  was  shown  that  the  plaintiffs  would  have  ex- 
tended the  time  for  delivery  till  the  first  of  October,  if  the  de- 
fendants would  have  bound  themselves  to  that  day  under  a  de- 
murrage (which,  however,  was  refused),  and  that  they  had 
stated  as  tiieir  reason  for  wishing  to  have  the  ship  then,  "  that 
after  that  time  the  days  would  be  shortening  so  fast  that  they 
would  be  seriously  inconvenienced  and  prejudiced  in  fitting  the 
vessel  out."  The  judge  charged  in  the  words  of  Hadley  v. 
Baxendale,  and  the  jury  found  a  verdict  of  £2,750.  An  attempt 
was  made  to  set  aside  the  verdict  for  excess  of  damages,  on  the 
ground  that  if  the  plaintiffs'  ofier  had  been  complied  with,  the 
loss  of  freight  would  have  been  suffered,  and  that  the  damages 
should  be  measured  rather  by  the  species  of  loss  which  they 
had  themselves  pointed  out,  than  by  that  which  they  afterwards 
set  up.     The  rule  was  refused.*  ^ 

We  turn  now  to  other  cases  connected  with  our  subject. 

*  Fletcher  v.  Tayleur,  17  C.  B.  21. 

1  The  rule  adopted  in  Hadley  v.  Baxendale,  and  which  is  an  affirmation  of  the  doctrine  of 
the  text,  lias  been  much  discussed  since  the  decision  in  that  case.  In  the  leading  American 
case  of  Griffen  v.  Colver,  16  N.  Y.  489,  the  same  general  rule,  with  the  limitations  on  the 
allowance  of  consequential  damages  in  cases  of  breach  of  contract,  is  thus  carefully  stated  by 
Seidell,  J. :  "  The  party  injured  is  entitled  to  recover  all  damages,  including  gains  prevented 
as  well  as  losses  sustained,  and  this  rule  is  subject  to  but  two  conditions  :  the  damages  must 
be  such  as  may  fairly  be  supposed  to  have  entered  into  the  contemplation  of  the  parties  when 
they  made  the  contract  —  that  is,  they  must  be  such  as  might  naturally  be  expected  to  follow 
its  violation  ;  and  they  must  be  certain,  both  in  their  nature  and  in  respect  to  the  cause  from 
which  they  proceed."  It  will  be  observed  that  there  is  an  apparent  difference  in  one  respect 
between  the  English  and  the  American  authority.  In  the  English  case  the  rule  by  which  the 
damages  are  to  be  ascertained  in  cases  of  breach  of  contract,  is  divided  into  two  alternative 
heads.  Under  the  one,  those  damages  are  to  be  allowed  which  would  arise  naturally,  or 
according  to  the  usual  course  of  things,  from  the  breach  of  the  contract,  and  under  the  otlier, 
those  which  may  fairly  be  supposed  to  have  been  contemplated  by  the  parties  as  the  probable 
result  of  such  breach.  In  the  American  case  this  distinction  is  not  observed,  for  the  reason 
apparently  that  the  two  heads  are  regarded  as  equivalent  to  each  other,  or  indeed  as  identical ; 
and  the  damages,  which  may  properly  be  supposed  as  having  entered  into  the  contemplation 
of  the  parties  in  making  the  contract,  are  considered  to  be  the  same  with  those  which  would 
naturally  or  usually  follow  its  violation.  In  most  instances  this  is  so.  But  cases  may  some- 
times arise  in  which  the  parries  would  be  aware  beforehand  that  a  breach  of  the  contract  would 
probably  result  in  certain  ill  consequences  which  might,  nevertheless,  be  unusual,  and  would 
not  have  been  anticipated  but  for  special  circumstances  or  means  of  information.  In  citing  the 
authority  of  Hadley  v.  Baxendale,  the  second  head  of  the  rule  there  stated  is  perhaps  all  that 
is  commonly  understood  ;  and  to  this  head,  with  the  addition  of  the  certainty  to  be  required  in 
the  damages  allowed,  the  American  rule,  as  laid  down  in  Griffen  v.  Colver,  is  equivalent.    The 


80  CONSEQUENTIAL   DAMAGES.  [CH.   III. 

Principal  and  Surety.  —  The  general  principle  in  regard  to 
remoteness  of  damage,  has  been  applied  in  Massachusetts  to  a 
case  of  surety.      The  defendant  had  executed  an  instrument  by 

same  rule  thus  substantially  identical  in  England  and  this  country,  was  followed  by  the  Court 
of  Queen's  Bench  in  the  case  of  a  carrier,  in  Le  Peintur  v.  The  Southeastern  Railway  Co.  Q. 
L.  T.  (N.  S.)  17U,  and  has  been  recognized  or  a]Ji)lied  in  the  following-  cases  :  Great  Western 
R.  Co.  V.  Redmayne,  1  L.  R.  (C.  P.)  329;  Hamilton  v.  M'Phcrson,  28  N.  Y.  72;  Shepard 
i;.  Milwaukee  Gas-light  Co.  15  Wis.  318 ;  Hinckley  v.  Beckwith,  13  Wis.  31;  Abbott  v. 
Gatcli,  13  Md.  314;  Copper  Co.  v.  Copper  Mining  Co.  33  Vt.  92;  Ashe  v.  De  Rossett,  5 
Jones  (N.  C),  299  ;  Meade  v.  Rutledge,  11  Tex.  44;  Baldwin  v.  Bennett,  4  Cal.  392  ;  Cun- 
ningham V.  IJorsey,  6  Cal.  19  ;  Page  v.  Ford,  12  Ind.  46  ;  Fessler  v.  Love,  43  Penn.  St.  313; 
Adams  Express  Co.  v.  Egbert,  36  Penn.  St.  360. 

The  same  rule  and  its  limitations  are  defined  by  the  Court  of  Queen's  Bench  in  Smead  v. 
Foord,  1  Ellis  &  Ellis,  602  ;  28  L.  J.  (N.  S.)  178,  where  tlie  defendant,  who  had  contracted  to 
deliver  a  threshing  machine  to  a  farmer  witliin  three  weeks,  knowing  it  was  needed  to  thresh 
wheat  in  the  field,  did  not  deliver  it  within  the  time.  The  farmer,  having  failed  in  an  effort  to 
stack  his  wheat,  it  was  in  consequence  injured  by  the  rain,  and  he  sustained  a  further  loss 
from  a  fall  in  the  market,  which  occurred  before  the  grain  could  be  kiln-dried  and  got  ready 
for  sale.  He  was  held  entitled  to  recover  the  damage  to  the  wheat,  since  that  might  well  have 
been  anticipated  by  the  parties  as  a  consequence  of  the  breach  of  the  contract,  but  not  to  com- 
pensation for  the  loss  from  the  change  of  the  market,  since  that  was  not  considered  to  have 
been  contemplated.  Mr.  Justice  Cronqjton  remarked  in  this  case,  that  the  doctrine  of  Hadley 
V.  Baxendale  should  not  be  extended.  The  same  principles  were  maintained  by  the  same  court 
in  Prior  v.  Wilson,  1  L.  T.  (N.  S.)  549. 

In  a  late  ease  the  plaintiffs  bought  caustic  soda  of  the  defendant,  part  to  be  shipped  in 
June,  part  in  July,  and  the  rest  in  August,  and  the  defendant  knew  at  the  time  of  the  sale 
that  the  plaintiffs  bought  it  for  shipment  and  resale  abroad,  but  not  that  it  was  for  Russia, 
although  he  learned  this  also  before  the  end  of  August.  He  neglected  to  deliver  any  of  the 
soda  until  September,  in  which  month  and  in  October  he  delivered  a  portion.  There  was  then 
no  market  for  the  soda,  and  the  plaintiffs,  who  had  contracted  for  its  resale  to  one  Heitman 
in  Russia,  lost  the  profit  of  the  resale  on  what  was  not  delivered,  and  by  reason  of  the  ap- 
proach of  winter  in  the  Baltic,  were  obliged  to  pay  increased  rates  of  freight  and  insurance  for 
what  was  delivered.  It  was  held  by  the  English  Court  of  Common  Pleas,  that  the  plaintiffs 
were  entitled  to  recover  the  loss  of  profit  on  the  resale  to  Heitman  and  the  additional  cost  of 
freight  and  insurance,  but  not  the  damages  paid  by  the  plaintiff  to  Heitman  in  respect  of  a 
sub-sale  made  by  the  latter.  These  last  were  held  to  be  too  remote,  and  not  within  either 
branch  of  the  rule  in  Hadley  v.  Baxendale.  Berries  v.  Hutchinson,  18  C.  B.  (N.  S.)  445  ;  s. 
c.  34  L.J.  (N.  S.)  C.  P.  169. 

Su  where  one  had  contracted  to  build  a  boat  hull  and  deliver  it  to  another  by  a  certain  day, 
but  delivered  it  two  months  later,  in  an  action  for  a  part  of  the  stipulated  price,  his  loss  of 
profits  thereby  sustained  was  not  allowed  in  bar  of  the  claim.  Taylor  v.  Maguire,  12  Mo. 
313  ;  13  Mo.  517. 

In  Anderson  v.  The  Northeastern  Railway  Company  (4  L.  T.  R.  (X.  S.)  216),  the  Court  of 
Exchequer  refused  to  apply  the  rule  in  Iladley  v.  Baxendale  to  a  railway  company  sued  as 
warehousemen  only,  so  as  to  imply  any  notice  from  the  mere  deposit  of  the  parcel  which 
should  affect  the  warehouseman  beyond  the  value  of  the  article. 

And  if,  through  the  negligence  of  the  carrier  or  other  jiarty  to  the  contract,  some  damages 
are  sustained  within  the  rule  in  Hadley  v.  Baxendale,  yet  if,  through  neglect  of  the  duty  which 
the  law  imposes  on  the  injured  party  of  making  reasonable  exertions  to  render  the  injury  as 
lio-ht  as  possible,  the  damages  are  unnecessarily  enhanced,  the  increased  loss  falls  on  him. 
Hamilton  v.  McPherson,  28"N.  Y.  72. 

In  the  case  of  Wilson  v.  The  Newport  Dock  Co.  1  Law  Rep.  177  (Exch.),  it  appeared  that 
in  pursuance  of  the  defendants'  agreement  to  admit  the  plaintiffs'  ship  into  the  dock  at  a  cer- 
tain time,  and  of  notice  to  the  plaintiffs  to  bring  her  at  that  time,  they  did  so  ;  but  on  the 
arrival  of  the  ship  she  could  not  be  admitted,  owing  to  the  dock  chain  being  out  of  order. 
The  day  was  stormy,  and  the  captain  who  was  ignorant  of  the  river,  after  a  discussion  as  to 
what  should  be  done,  with  the  ])ilot,  who  thought  he  might  take  the'ship  into  a  place  of  safety, 
anchored  her  immediately  outside  the  dock,  where  she  grounded,  and  in  consequence  was  much 
damaged.  The  jury  found  neither  the  captain  nor  pilot  in  fault,  but  disagreed  as  to  whether 
the  vessel  might  in  fact  have  been  taken  to  a  place  of  safety. 

Baron  Martin  held,  on  the  authority  of  Jones  v.  Boyce,  1  Stark.  493,  that  the  damage  was 
not  too  remote.  The  learned  Baron  considered  the  decision  in  Hadley  v.  Baxendale,  in  which 
he  had  participated,  as  no  authority  in  the  case,  as  no  loss  of  profits  was  claimed  ;  and  he  took 
occasion  to  say  that  the  remark  of  Baron  Alderson,  that  "  the  damages  to  be  recovered  by  the 
plaintiff  were  such  as  might  reasonably  be  supposed  to  have  been  in  contemplation  of  both 


CH.   III.]  CONSEQUENTIAL   DAMAGES.  81 

which  he  promised  to  hold  the  plaintiff  harmle'ss  against  any 

loss  he  might  sustain  by  signing  a  certain  bond  for  duties  at 

the  Passamaquoddy  custom-house.     The  plaintill'  showed,  [77] 

that  in  1814  the  British  captured  Eastport,  got  possession 

of  the  custom-house  and  bond  in  question ;  that  they  issued  a 

parties  at  the  time  they  made  the  contract  as  the  probable  result  of  the  breach  of  it,"  altlioii<;li 
proper  to  he  taken  into  consideration  by  carriers  and  their  customers,  in  the  bulk  of  broken 
contracts,  liad  no  api)lication.  "  Tarties,"  said  tlie  learned  jud.ue,  "entering  into  contracts, 
contemplate  that  they  will  be  performed,  not  broken,  and  in  the  intinite  majority  of  instances, 
the  damaj^es  to  arise  from  their  breach  never  enter  into  their  contemplation  at  all." 

The  ship  remaining  where  she  did,  the  case  was,  in  contemplation  of  law,  the  same  as  if  she 
had  been  compelled  to  remain  there  by  a  vis  major. 

The  Lord  Chief  Earon,  liowever,  in  an  opinion  in  which  the  remaining  judges  concurred, 
held  that  tiie  facts  found  diil  not  enable  him  to  determine  whether,  within  the  rule  in  Hadley 
V.  Baxendale,  the  defendants  should  be  held  liable. 

In  the  case  of  Gee  et  all.  v.  The  Lancashire  and  Yorkshire  Eailway,  6  H.  &  N.  21 1  ;  30 
L.  J.  (N.  S.)  Exch.  11  ;  3  L.  T.  R.  (N.  S.)  328,  the  plaintitfs,  who  were  cotton  spinners,  hav- 
ing rented  a  new  mill  which  was  in  readiness  to  begin  working,  and  engaged  a  number  of 
hands  for  it,  caused  to  be  delivered  to  the  defendants,  to  be  carried  from  Liverpool  to  Oldham, 
some  bales  of  cotton,  wdiicli  were,  through  the  negligence  of  the  carriers,  delayed  in  the 
delivery  for  some  days  bevond  the  usual  time.  In  consequence  of  the  delay,  the  plaintitfs 
having  no  other  cotton  to  work,  the  mill  was  kept  idle,  and  the  work  people  were  unemployed. 
The  necessity  of  the  cotton  to  enable  the  plaintitf  to  work  these  mills,  was  not  cammunicated 
to  the  defendants  at  the  time  of  its  delivery  for  freight,  but  was  so  communicated  immediately 
on  its  non-arrival  at  the  proper  time,  after  which  there  was  still  an  unreasonable  delay  in  the 
delivery  on  the  part  of  the  carrier.  The  Court  of  Exchequer,  reversing  the  judgment  of  the 
county  court,  held  that  the  carrier,  not  having  had  notice  when  the  cotton  was  delivered,  that 
the  mill  was  waiting  for  it,  was  not  liable  for  the  expenses  caused  by  the  stoppage  of  work, 
and  that  the  wages  paid  and  loss  of  profit  incurred  by  the  mill  owners  were  not  the  measure 
of  damages.  The  rule  under  consideration  was  adhered  to.  But  Baron  Wilde  observed, 
"  This  question  of  the  measure  of  damages  is  one  that  has  produced  more  difficulty  than  per- 
haps any  branch  of  the  law ;  and  I  rather  agree  with  an  observation  made  by  my  brother 
Martin,  that  although  a  very  excellent  attempt  was  made  in  Hadley  v.  Baxendale  to  lay  down 
a  rule  of  practice,  it  is  found  that  that  rule  will  not  meet  all  cases,  and  it  will  probably  be 
found  practically,  when  the  matter  comes  to  be  more  solemnly  discussed,  that  in  this,  as  in 
many  other  cases  of  contract,  there  is  no  measure  of  damages  at  all,  and  that  we  are  seeking 
to  find  a  rule  where  a  rule  cannot  be  made." 

In  the  case  of  Boyd  v.  Fitt,  14  Irish  Com.  Law  Eep.  43,  the  defendant  having  agreed,  as 
agent  in  Glasgow  of  the  plaintiffs  in  Dublin,  to  have  funds  in  bank  continually  on  hand  to  the 
extent  of  £500  to  meet  drafts  of  the  plaintiffs',  and  having  cash  in  bank  to  the  required 
amount,  absented  himself  from  the  city  on  a  day  on  which  a  cash  order  for  .£2.50  fell  due,  which 
was  ix'turued  to  Dublin  dishonored,  in  consequence  of  which  the  plaintiffs'  business  in  Glasgow 
was  suspended,  and  in  Dublin  much  injured,  aiul  they  lost  the  agency  of  an  Australian  firm. 
The  jury  having  given  damages  on  each  of  these  three  heads,  the  verdict  was  sustained  ;  the 
Lord  Chief  Baron,  who  delivered  the  opinion  of  the  court,  holding  that  the  suspension  of  the 
Glasgow  trade  was  within  both  branches  of  the  rule  in  Hadley  v.  Baxendale,  and  that  the 
damages  sustained  under  the  other  two  heads  of  loss  were  within  the  rule  in  Rolin  v.  Stew- 
ard, 14  C.  B.  595  (cited  ante,  53),  the  natural  result  of  the  defendant's  breach  of  contract. 
The  extent  of  these  damages  it  was  for  the  jury  to  say.  His  lordship  remarked  that  he 
concurred  in  what  seemed  to  have  been  the  ojiinion  of  Mr.  Justice  Crompton,  in  Smeed  v. 
Foord,  and  of  Baron  Wilde  in  Gee  v.  The  Lancashire  and  Yorkshire  Eailway  Co.  [siijira], 
that  the  rule  professed  to  be  laid  down  in  Hadley  v.  Baxendale  is  not  capable  of  meeting  all 
the  cases. 

But  again,  in  the  late  case  of  the  Great  Western  Railway  Co.  v.  Eedmayne,  1  Law  Eep.  (C. 
P.)  329,  where  the  plaintiff  lost  the  profits  of  the  sale  of  his  goods  through  the  negligent  delay 
of  the  carrier,  who  had,  however,  received  no  notice  of  the  object  for  which  the  goods  were 
sent,  the  English  Common  Pleas,  standing  firm  on  the  doctrine  of  Hadley  v.  Baxendale,  disal- 
lowed the  recovery  of  the  profits. 

We  have  cited  these  cases,  which  illustrate  what  may  be  called  the  second  branch  of  the 
rule  in  Hadley  v.  Baxendale,  somewhat  at  length,  both  because  the  question  is  one  of  much 
nicety  and  importance,  and  because  hereafter,  in  considering  the  loss  of  profits  as  an  item  of 
damage  in  actions  of  contract  against  carriers,  we  shall  sometimes  find  the  distinction  between 
the  cases  where  profits  are  withheld  under  the  second  head  of  the  rule,  and  those  where  they 
are  allowed  under  the  first,  exceedingly  thin.  Indeed,  it  will  occasionally  be  hard  to  reconcile 
6 


82  CONSEQUENTIAL    DAMAGES.  [cil.    III. 

writ  against  the  plaintiff  as  obligor,  that  the  plaintiff  was  obliged 
to  fly  to  avoid  arrest,  and  that  his  business  was  greatly  injured 
thereby.  But  it  was  held  that  he  could  claim  no  remuneration 
for  any  such  injury,  and  Parker,  C.  J.,  delivering  the  opinion  of 
the  court,  said, — 

"  The  common  construction  of  such  a  contract  is,  that  if  tlie  surety  is  obliged 
to  pay  the  bond  by  suit,  or  otherwise,  the  principal  shall  pay  him  the  sum  he  has 
been  obliged  to  advance,  together  with  all  such  reasonable  expenses  as  he  may 
have  been  obliged  to  incur,  and  which  may  be  considered  as  the  necessary  conse- 
quences of  the  neglect  of  the  principal  to  discharge  his  own  debt.  But  extraor- 
dinary expenses  which  might  have  been  avoided  by  payment  of  the  money,  or 
remote  or  unexpected  consequences,  are  never  considered  as  coming  within  the 
contract.  Thus,  if  a  surety,  by  reason  of  being  obliged  to  pay  money  for  his 
principal,  becomes  embarrassed  in  business,  and  is  tinaily  obliged  to  abandon  it, 
it  is  not  expected  that  the  principal  will  be  held  to  indemnify  him  for  this  conse- 
quential misfortune.  It  is  not  the  natural  and  necessary  effect  of  his  becoming  a 
surety,  but  is  occasioned  by  his  undertaking  to  do  what  lie  was  not  in  a  condition 
to  perform.  So,  flight  to  avoid  payment  of  his  debt  is  an  accident  wholly  unfore- 
seen, and  its  consequences  cannot  be  considered  as  provided  for."  * 

*  Hayden  v.  Cabot,  17  Mass.  169.     See  also,  Bishop  v.  Williamson,  2  Fairfield,  495. 

the  decisions.  That  of  The  Great  Western  Railway  Co.  v.  Redmaj-ue,  j  ast  cited,  or  the  pre- 
ceding one  of  Gee  v.  The  Lancashire  and  Yorkshire  Railway  Company,  for  instance,  can  hardly 
be  made  to  consist  with  Wilson  v.  The  Lancashire  and  Yorkshire  R.  R.  Co.  30  L.  J.  C.  P. 
(N.  S.)  232  ;  or  Collard  v.  The  Southeastern  Railway  Co.  7  H.  &  N.  79  (30  L.  J.  N.  S.  Exch. 
393),  cited  ])ost,  359,  note. 

The  distinction  intended  to  be  observed  is  this,  that  in  the  former  cases  the  loss  of  profits  is 
a  secondary  or  consequential  damage,  the  responsibility  for  which  can  be  charged  on  the  carrier 
only  by  bringing  his  attention  to  it  as  a  possible  result  of  his  neglect  of  duty  at  the  time  of 
delivering  to  him  the  goods  for  conveyance,  or  of  his  agreement  to  carry  them,  so  that  he  may 
be  considered  as  having  accepted  such  responsibility.  In  the  latter  class  of  cases  the  loss  of 
profits  is  a  legitimate  or  natural  and  direct  result  of  the  breach.  Where  such  a  consequence  is 
shown,  no  actual  notice  beforehand  is  necessary  to  charge  the  one  in  default.  The  law  in- 
tends him  to  have  foreseen  the  consequence  of  his  negligent  or  wrongful  act.  But  what  is 
natural  and  what  accidental,  what  is  immediate  and  what  is  consequential,  are  inquiries  so 
dependent  on  the  facts  of  each  case  that  we  shall  find  ourselves,  if  not  inclined  to  ac(iuiesce  in 
Barou  Wilde's  belief,  that  there  is  in  this  class  of  cases  "  no  measure  of  damages  at  all,"  at 
least  to  conclude,  that  though  there  ai'e  clear  general  principles  to  guide  us,  there  is  no  rule  of 
certain  and  uniform  application. 

Among  cases  of  contract,  the  actions  in  which,  according  to  the  principles  we  have  been 
considering,  consequential  damages  are  allowed  (and  of  which  those  brought  in  this  form 
against  carriers  just  referred  to  constitute  a  distinguished  class),  peculiarly  illustrate  the  ad- 
vantage (which  also  belongs  to  most  actions  of  tort)  of  that  venerable  system  of  trial  by  jury, 
which  many  lawyers  of  the  present  day  are  inclined  to  disparage,  except  as  a  bulwark  against 
oppression.  It  is,  of  course,  the  duty  of  the  court  in  these,  as  in  all  cases,  to  see  that  nothing 
go  to  the  jury  not  pertinent  to  the  issue.  But  this  precaution  being  taken,  the  filtering 
through  twelve  minds  untrained  to  concert  of  judgment,  each  having  its  own  habit  of  observa- 
tion and  investigation,  and  each,  while  acting  for  itself,  bringing  new  modes  of  thought  to  its 
chance  associates  —  the  filtering,  by  this  j)rocess,  of  the  material  facts -^  the  facts  tending  to 
show  how  far  the  damage  was  the  result  of  the  defendant's  fault,  h?)w  far  other  facts  enhanced 
the  loss,  and  what  that  loss  amounts  to  under  all  the  circumstances  of  the  case,  will  ordinarily 
leave  a  residuum  of  truth  as  to  what  should  be  the  compensation  in  a  particular  case,  more 
nearly  unalloyed  than  can  result  from  the  limitation  or  complication  of  the  process  by  an 
abstract  rule  of  law.  Indeed  it  is  not  too  much  to  say,  that  in  these  cases,  a  rule  at  once 
definite  and  uniformly  applicable  cannot  be  adopted  in  advance  by  the  court  without  invading 
the  realm  of  the  jury. 

As  to  the  application  of  the  rule  in  Hadley  v.  Baxendale  to  a  warranty,  see  post,  293,  note  ; 
to  real  covenants,  152,  note. 


CH.    III.]  CONSEQUENTIAL   DAMAGES.  83 

So  in  New  York,  the  plaintiff  sued  the  defendant  on  a  con- 
tract, by  which  the  defendant,  in  consideration  of  $5  paid  him, 
agreed  to  take  a  note  executed  by  the  plaintiff  and  a  surety,  pay- 
able the  first  of  May,  and  to  forbear  progecution  of  the  note  for 
nine  months ;  and  it  was  alleged  that  the  defendant  did  not  for- 
bear, but  sued  on  the  note,  by  which  the  plaintiff  lost  $500.  The 
plaintiff  offered  to  prove,  to  enhance  the  damages,  that  Avlien  he 
was  sued  he  was  engaged  in  his  harvest,  and  that  for  the  purpose 
of  raising  money  to  satisfy  the  demand  he  was  obliged  to  quit 
his  work  and  thresh  his  grain,  and  that  he  was  put  to  great 
troul)le  in  raising  the  money.  But  on  certiorari  to  the  Supreme 
Court,  Woodworth,  J.,  said,  "  It  appears  to  me  that  this  could 
not  form  a  ground  of  damages,  although  the  plaintiff  might 
have  suffered  inconvenience  and  loss  by  the  failure  to  fulfill  the 
contract.  Such  remote  consequences  cannot  be  taken  into  con- 
sideration in  estimating  the  damages ;  "  which  was  quali- 
fied by  this  remark,  "  Besides,  there  does  not  appear  any  [78] 
necessity  that  the  plaintiff,  at  the  moment  the  writ  was 
served,  should  quit  his  harvest  and  make  sacrifices  to  raise  the 
money."  *^ 

Lessor  and  Lessee.  —  So,  again,  where,  in  a  lease  of  a  dairy 
farm  for  five  years,  the  lessor  agreed  to  put  the  barns  on  the 
premises  in  a  good  state  of  repair,  but  neglected  to  do  so  ;  it  was 
held  that  the  lessee  could  recover  the  amount  it  would  cost  to 
put  the  barns  in  repair,  but  not  the  damage  sustained  by 
injuries  to  the  cows  and  young  cattle,  the  increase  of  food 
and  the  decrease  of  produce  resulting  from  the  state  of  the 
barns ;  these  damages  being  altogether  too  remote  and  con- 
tingent." t^ 

*  Deyo  V.  Waggoner,  19  J.  E.  241.  t  Dorwin  v.  Potter,  5  Denio,  306. 

1  See  Carlaud  v.  Cunningham,  37  Penn.  232.  So  in  Texas,  where  the  defendant  had  sued 
the  phuntift"  in  his  absence  from  the  State,  by  publication,  and  the  plaintiff's  agent,  seeing  the 
advertisement  in  the  paper,  got  the  plaintiff  to  promise  to  discontinue  the  suit,  which  he  tailed 
to  do,  and  judgment  having  been  obtained  in  it,  a  tract  of  the  plaintiff's  land  worth  about 
$5,000  was  sold,  under  an  execution  on  the  judgment,  to  a  purchaser  in  good  faith,  without 
notice,  for  filSO  —  it  was  held  that  if  the  defendant  were  liable  at  all  for  his  failure  to  dismiss 
the  suit,  the  loss  of  the  tract  of  land,  if  a  consequence  of  such  failure,  was  too  remote  to  make 
him  responsible  tbr  it.     Travis  v.  Duffau,  20  Texas,  49. 

Where  one  had  wrongfully  delayed  delivering  a  conveyance  of  land  on  which  was  a  barn, 
but  afterwards  conveyed  the  premises,  the  expense  incurred  by  the  plaintiff  in  preparing  to 
build  another  barn  on  his  own  ground  during  the  period  of  the  defendant's  refusal,  was  held 
too  remote.     Warner  v.  Bacon,  8  Gray,  397. 

Expenses  incurred  by  the  plaintiffs  in  altering  the  works  of  their  mill,  in  consequence  of 
their  apprehensions  founded  on  a  trespass  of  the  defendant,  which  in  fact  caused  nominal 
damages  only,  but  was  accompanied  by  threats  on  his  part  the  carrying  out  of  which  would 
render  them  necessary,  were  held  too  remote.     Sibley  v.  Hoar,  4  Graj^  222. 

-  Where  the  lessors  of  a  saw-mill  broke  their  contract  to  repair  the  mill,  the  lessees,  who  had 
a  large  stock  of  logs  in  the  mill  yard,  were  held  entitled  to  recover  the  expenses  of  hauling 


84  CONSEQUENTIAL    DAMAGES.  [cil.    III. 

Warranty. — In  a  case  in  New  York,  where  the  plaintiff 
sued  the  defendant  for  the  breach  of  an  impUed  warranty  in  the 
sale  of  a  horse  which  had  been  recovered  from  him  at  the  suit  of 
a  third  party ;  it  was  held  by  the  Supreme  Court  that  the 
measure  of  damages  was  the  price  paid  by  the  purchaser,  with 
interest,  and  the  costs  recovered  against  him  ;  and  that  the  costs 
incurred  by  him  in  the  defense  of  the  action  brought  by  the  real 
owner  were  not  allowable.*  ^ 

*  Armstrong  v.  Percy,  5  Wend.  535. 


them  to  another  mill,  and  the  cost  of  getting  them  sawed  there  heyond  what  such  expenses 
would  have  been  in  their  own  mill ;  also  the  profits  they  would  have  made  from  sawing  the 
]iiml)er  during  the  time  thus  lost,  deducting  the  time  that  would  have  been  required  to  saw  the 
logs  hauled  to  the  other  mill,  in  addition  to  which  interest  might  be  allowed  as  damages  in  the 
discretion  of  the  jury.  Hinckley  v.  Ecckwith,  13  Wis.  31.  But  where  ihc  defendants  ofl-'ered 
to  saw  the  logs  in  their  mill  yard  at  the  same  price  they  could  have  been  sawed  for  at  the 
leased  mill,  the  expense  of  hauling  to  the  distant  mill  was  needhiss,  and  the  plaintiffs  were  not 
entitled  to  recover  it.     S.  C.  17  Wis.  413. 

1  The  question  whether  one  who  makes  a  false  representation,  or  who  makes  and  breaks  a 
warranty,  is  liable  for  the  costs  of  a  litigation  which  another  engaged  in,  relying  on  such 
warranty  or  representation,  will  usually  be  determined  by  the  fact  whether  the  litigation  was 
or  not  tlie  legitimate  consequence  of  the  false  statement.  Notwithstanding  that  if  the  state- 
ment had  been  true,  the  latter  would  not  have  brought  or  would  have  successfully  defended  a 
suit  which  he  in  fact,  relying  on  the  truth  of  the  statement,  brought  or  defended  unsuccess- 
fully, yet  if  his  doing  so  was  not  a  necessary  or  judicious  proceeding,  he  cannot  impose  the 
expense  thus  incurred  on  the  maker  of  the  representation  or  warranty.  Merritt  v.  Nevin,  20 
U.  C.  Q.  B.  540. 

Thus  where  the  defendant  falsely  represented  that  he  was  informed  by  the  keeper  of  a  public 
house  that  it  produced  certain  average  daily  returns,  and  the  plaintitf,  after  having  bought  the 
good-will  of  the  house  on  the  faith  of  such  representation,  discovered  that  its  value  was  much 
less  than  was  thus  pretended,  and  without  further  inquiry  sued  the  vendor  for  false  representa- 
tion and  failed  in  the  action,  because,  as  it  proved,  no  such  representation  had  been  made  by 
him,  it  was  held,  in  an  action  by  the  purchaser  against  the  defendant  for  his  false  representa- 
tion as  to  what  the  vendor  had  said,  that  the  ])laintiff  coidd  not  recover  the  costs  of  the  action 
against  the  inn-keeper,  as  they  were  not  the  iiatural  or  proximate  consequence  of  the  repre- 
sentation. Richardson  v.  Dunn,  30  L.  J.  R.  (N.  S.)  (C.  P.)  44  ;  2  L.  T.  R.  (N.  S.)  430  ;  8  C. 
B.  (N.  S.)  655.     See/ws^,  292  et  seg.,  325  et  seq. 

So  the  allowance  as  consequential  damages  of  the  expense  of  a  prior  litigation,  in  other 
cases,  depends  on  the  same  consideration.  A  vessel  bound  to  Valparaiso,  with  liberty  to  touch 
at  the  Falkland  Islands,  had  on  board  goods  consigned  to  those  islands  and  several  hundred 
barrels  of  gunpowder  for  Valparaiso.  At  the  islands,  it  having  been  necessary  for  her  to 
unload  the  gunpowder  before  entering  the  harbor,  the  defendants  furnished  a  vessel  on  which 
the  powder  was  stowed,  but  afterwards  removed  the  powder  to  another  vessel  untit  for  the 
purpose,  which  went  down  with  it.  The  captain,  after  his  arrival  at  Valparaiso,  having  b^n 
sued  liy  the  consignees,  defended  the  action  unsuccessfully.  It  was  held  that  the  defendants, 
although  liable  for  the  value  of  the  gunpowder,  were  not  liable  for  the  costs  of  defending  the 
action  at  Valparaiso,  it  not  appearing  that  the  conduct  of  the  captain  was  prudent  in  so  doing. 
Erie,  C.  J.,  also  expressed  the  opinion  that  these  damages  were  too  remote.  Ronneberg  v. 
The  Falkland  Islands  Company,  17  C.  B.  (N.  S.)  1  ;  34  L.  J.  (N.  S.)  (C.  P.)  34. 

And  the  expenses  of  a  litigation,  as  indeed  may  be  said  in  general  in  regard  to  other  ex- 
penses following  upon  a  defendant's  breach  of  contract  or  other  default,  can  be  allowed  only 
where  it  is  fairly  the  result  of  the  breach  or  default,  and  not  where  it  might  have  been  avoided 
by  proper  diligence.  So  where  the  plaintiff  had  agreed  with  the  owner  of  a  threshing  machine 
to  repair  it  before  harvest  time,  and  employed  and  paid  the  defendant  to  make  a  fire-box 
needed  for  the  repairs  which  the  defendant  agreed  to  have  done  in  about  a  fortnight,  but  failed 
to  do.  and  the  plaintiff  had  to  procure  one  elsewhere ;  which  he  might  have  done  in  time  to 
fulfill  his  contract  with  the  owner,  but  did  not ;  and  having  been  sued  by  the  owner,  paid  £20 
to  settle  the  suit,  it  was  held  that  he  could  recover  the  amount  he  had  paid  the  defendant 
for  the  tire-box  and  his  additional  exi)ense  in  procuring  another,  but  not  the  amount  paid  in 
settlement  of  the  suit.  Portman  v.  Middleton,  4  C.  B.  (N.  S.)  322.  See  Henderson  v.  Sevey, 
2  Greenl.  139. 


CH.    III.]  CONSEQUENTIAL   DAMAGES.  85 

So,  again,  where  the  defendant  sold  the  plaintiff  certain 
cloths  for  the  Mexican  market,  accompanied  by  an  invoice  speci- 
fying the  contents  of  the  bales,  and  warranted  correct,  but  in 
which  the  niunber  of  yards  was  much  over-stated  ;  the  goods,  on 
being  forwarded  to  Mexico  by  the  plaintiff,  were  entered  at  the 
custom-house  before  the  mistake  in  the  invoice  was  discovered, 
and  the  duties  paid  upon  the  erroneous  amount ;  the  parties 
settled  the  difference  between  them  amicably,  so  far  as  the  price 
of  the  goods  was  concerned,  and  the  action  was  brought  to 
recover  the  excess  of  Mexican  duties  paid  by  the  plaintiff,  to- 
gether with  certain  commissions  in  New  York,  in  consequence 
of  the  erroneous  valuation  made  by  the  defendants  in  their 
invoice.  But  the  suit  was  successfully  resisted,  and  the  claim 
disallowed.* 

Uncertain  Loss.  —  In  a  recent  case  in  England,  where  a 
prize  had  been  offered  for  the  best  plan  and  model  of  a 
machine,  and  plans  and  models  were  to  be  sent  by  a  cer-  [79] 
tain  day,  the  plaintiff  sent  a  plan  and  model  accordingly, 
by  a  railway  ;  but  through  the  negligence  of  their  agents  it  did 
not  arrive  at  its  destination  till  after  the  time  appointed ;  it  was 
considered  that  the  proper  measure  of  damages  was  the  value 
of  the  labor  and  materials  expended  on  the  plan  and  model,  and 
that  the  chance  of  obtaining  the  prize  was  too  remote  to  Ije 
estimated.!  ^ 

Actions  of  Tort.  — We  turn  now  to  actions  of  tort.^  In  re- 
gard to  cases  of  deliberate  or  malicious  wrong,  we  have  already 
seen  that  the  law  applies  very  liberal  relief  And  in  cases  of 
reckless  or  mischievous  acts  injurious  to  others,  even  Avhere 
exemplary  damages  are  not  claimed,  the  party  in  the  wrong  is 

*  Hargous  v.  Ablon  et  al.  5  Hill,  473.     See    maxim  Non  remota  sed  proxima  causa  spectatur, 
this  case  again,  3  Denio,  406.    Tliei'e  are  a    Broom's  Legal  Maxims,  105. 
number  of  analogous  cases  governed  by  the        t  Watson  v.  Ambergate  NT.  &  B.  Eaihvay, 

15  Jur.  448. 


1  But  in  a  late  and  similar  case  in  Pennsylvania,  the  rule  adopted  in  Watson  v.  Ambergate 
N.  &  B.  Railway  was  disapproved,  the  court  holding  that  the  value  of  the  op])ortunity  to 
compete  for  the  premium  furnished  the  measure  of  the  plaintiff's  damages.  If  the  company 
were  informed  of  the  object  of  the  transmission,  the  loss  of  the  privilege  of  the  competition  was 
in  view  of  both  parties  when  they  entered  into  the  contract,  and  if  not,  the  loss  was  still  the 
result  of  the  carrier's  negligent  breach.  But  it  appearing  from  the  evidence  of  one  of  the  com- 
mittee l)y  whom  the  prizes  were  awarded,  that  the  plaintiff  must  at  any  rate  have  failed  to 
obtain  the  prize,  he  was  held  entitled  to  nominal  damages  only.  Adams  Express  Company  v. 
Egbert,  36  Penn.  St.  360. 

'■'  In  actions  of  tort  the  rule  in  Hadley  v.  Baxendale  [ante,  76),  of  course,  as  we  shall  see  in 
reference  to  profits  [infra,  80,  notel),  does  not  obtain.  The  question  then  is,  not  whether  the 
damage  entered  into  the  consideration  of  the  parties  in  advance,  but  simply  whether  it  is  fairly 
aud  directly  the  result  of  the  injurious  act. 


86  CONSEQUENTIAL   DAMAGES.  [CH.    III. 

often  made  answerable  for  consequences  very  remote  from  the 
original  act.  So  in  the  famous  squib  case,  the  first  thrower  of 
the  combustible  was  held  responsible,  though  it  had  passed 
through  the  hands  of  two  other  parties.*^  So  where  the  defend- 
ant foolishly  went  up  in  a  balloon,  which  descended  into  the 
plaintiff's  garden  and  attracted  a  crowd,  who  trod  down  the 
plaintiff's  vegetables  and  flowers,  the  original  wrong-doer  was 
held  answerable  for  the  injury  done  by  the  crowd  as  well  as  by 
himself.f  So  where  the  defendant  having  quarreled  with  a  boy, 
pursued  him  with  a  pickaxe,  and  followed  him  into  the  plaintiff's 
store,  where,  in  his  effort  at  flight,  he  committed  unintentional 
damage,  the  defendant  was  held  responsible  for  the  injury  thus 
done.i 

^  Loss   OF  Profits  in  Tort.  —  So  in  an  action  of  trespass  in 

Massachusetts,  for  breaking  down  and  destroying  part  of  a  mill- 
dam,  damages  were  assessed  for  the  cost  of  repairing  the  dam, 
and  also  for  interruption  to  the  use  of  the  mill,  or  diminution  of 
profits  occasioned  by  the  water  flowing  through  the  break  in  the 

dam,  and  by  that  means  falling  too  low  for  the  working 
[80]  of  the  mill ;  it  Avas  objected  that  damages  for  the  latter 

cause  could  not  be  recovered  in  this  action ;  but  the  Su- 
preme Court  said,  "  The  interruption  to  the  use  of  the  mill  and 
the  diminution  of  the  plaintiff's  profits  on  that  account,  were 
alleged  in  the  declaration  and  proved  at  the  trial ;  and  we  think 
this  was  right.  The  plaintiffs  are  entitled  to  recover  for  all  the 
damages  they  suffered  by  reason  of  the  trespass."  §^ 

*  Scott  V.  Shepherd,  2  W.  Black.  892.  responsible  for  further  damages  resulting  from 

t  Guille  V.  Swan,  19  J.  R.  381.  the  plaintiff's  remand  by  a  magistrate  ;   that 

t  Vandenburgh   ?'.    Truax,  4   Denio,  464.  being  a  judicial  act.    Lock  u.  Ashton,  12  Q.  B. 

But  the  defendant,  liable  in  an  action  of  false  R.  871. 

imprisonment  fur  an  unfounded  an-est,  is  not  §  White  v.  Moseley,  8  Pick.  356. 

1  Ante,  67. 
\  2  It  maj^  now  be  assumed  to  be  the  genera!  rule  that  in  actions  of  tort,  where  the  amount  of 
profits  of  which  the  injured  party  is  deprived,  as  a  legitimate  result  of  the  trespass,  can  be 
shown  with  reasonable  certainty,  such  jffofits  constitute  to  that  extent  a  safe  measure  of  dam- 
ages. In  these  cases,  the  nde  adopted  with  reference  to  certain  breaches  of  contract  Avhich 
makes  the  offending  party  liable  for  tiie  loss  of  profits,  so  far  only  as  he  foresaw,  or  should  have 
foreseen  that  particular  consequence  of  his  act,  does  not  apjily.  He  who  commits  a  trespass 
must  be  held  to  contemplate  all  the  damage  which  may  legitimately  follow  from  his  illegal  act, 
whether  he  might  have  foreseen  it  or  not ;  and  so  far  as  it  is  })lainly  traceable,  he  should  make 
compensation  for  it.  To  this  extent,  the  recovery  of  a  sum  equal  to  the  profits  lost,  while 
fairly  within  the  principle  of  compensation,  is  also  within  the  limits  which  exclude  remote  con- 
sequences from  the  scale  in  which  the  wrong  is  weighed.  See  ("handler  v.  Allison,  10  Mich. 
460  ;  11  Mich.  542  :  Jolly  v.  Single,  16  Wis.  280;  Fultz  v.  Wyckoff,  25  Ind.  321  ;  Simmons  v. 
Brown,  5  R.  I.  299  ;  Dubois  v.  Glaub,  52  Penn.  238  ;  Hanover,  R.  R.  Co.  v.  Coyle,  55  Penn. 
396  ;  and  see  the  cases  of  collision  cited  post,  469,  note.  The  rule  in  the  case  of  torts  and  of 
those  cases  of  contract  where  damages  are  claimed,  not  on  the  ground  that  they  were  or  should 
have  been  foreseen,  but  simply  as  a  direct  result  of  the  breach,  is  the  same  in  this  respect,  the 
only  difference  being,  as  we  think,  that  in  the  case  of  the  contract  it  in  a  degree  limits  the 
extent  of  the  damages,  which  in  the  case  of  the  trespass  or  other  tort  are  subject  only  to  that 


CH.    III.]  CONSEQUENTIAL    DAMAGES.  87 

And  in  a  case  at  Nisi  Prius,*  Lord  Kenyon  held  tliat  an  action 
lay  for  firing  on  negroes  on  the  coast  of  Africa,  and  thereljy 
deterring  them  from  trading  with  the  plaintift',  so  that  the 
plaintift'  lost  their  trade. f^ 

*  Tarletoni;.  McGawley,Peake,  N.  p.  Cases,  2f)l  ;   while  admitting   that  tlic  ]>laiiUi(T  was 

205.  entitled   to  the   value  of  a  bargain    actually 

t  The  case  appears  to  come  under  the  head  made.     It  was  an  action  by  lessee  of  a  store 

of  profits;  whatever  was  lost  must  have  been  against  lessor,  for  a  refusal  to  give  jiossession 

the  i)r()lits  of  the  trade.    I  may  here  remark  of  the  demised  property.      The  jthuntiit'  was 

that  the  doetriue  of  the  denialof  profits  that  allowed  his  expenses  in  preparing  to  remove, 

might  have  been  made  in  a  business,  was  again  but  not  the  profits  which  he  might  have  made 

affirmed  in  Giles  v.  O'Toole,  4  Barb.  S.  C.  11.  in  business  on  the  premises. 

limitation  of  the  rule  which  rccpiircs  such  damages  to  be  certain  in  their  nature  and  extent. 
The  injuries  caused  by  a  trespass  are  so  various  that  there  is  no  ''usual  course  of  things  " 
which  can  he  followed  in  estimating  them  according  to  the  rule  in  Hadley  v.  Baxendale.  But, 
if  the  profits  claimed  are  to  any  reasonable  degree  nncertain,  they  cannot  be  recovered.  Thus, 
the  loss  of  profits  sustained  by  a  mercantile  firm  from  the  seizure  of  its  goods,  it  is  said  in 
California,  cannot  be  allowed.  The  recovery  is  necessarily  limited  to  such  damages  as  can  be 
estimated  by  computation,  and  the  effort  to  go  beyond  this  would  end  in  speculations  founded 
to  a  great  extent  on  conjecture.  Selden  v.  Cashman,  20  Cal.  56.  And  in  an  action  of  trespass 
for  damage  to  a  store,  this  nice  distinction  has  been  taken.  The  injured  party  is  entitled  to 
damages  for  the  loss  of  the  use  of  the  property  in  addition  to  rent,  and  for  the  injury  to  the 
premises,  but  not  for  the  loss  of  the  ])rofits  which  might  have  been  derived  from  his  capital 
and  personal  services  during  the  intei-ruption.  Cincinnati  u.  Evans,  5  Ohio  St.  (N.  S.)  594. 
See  also  the  cases  cited  at  69  et  seq.  In  the  effort  to  distinguish  what  is  certain  from  what  is 
uncertain,  no  mathematical  test  can  be  established,  and  the  line  between  those  profits  which 
should  be  excluded,  and  those  which  should  be  allowed,  is  not  always  distinct.  Some  dis- 
crepancy, therefore,  as  we  have  seen  and  shall  again  observe,  will  be  found  in  the  cases.  See 
ante,  76,  note. 

1  In  a  case,  we  believe  of  new  impression,  in  Minnesota,  where  the  law  allows  any  rate  of 
interest  that  parties  may  agree  on  in  writing,  and  in  the  absence  of  such  agreement  fixes  the 
interest  at  seven  per  cent,  per  annum,  the  action  was  to  recover  damages  for  the  negligent  act 
of  the  defendant  in  satisfying  of  record  a  mortgage  whereby  a  note  of  a  third  party  bearing 
interest  at  four  per  cent,  a  month,  which  was  secured  by  the  mortgage,  became  valueless.  The 
court  held  the  measure  of  damages  to  be  the  "  value  "  of  the  note,  i.  e.  the  amount  of  principal 
and  interest  due  on  it  at  the  time  of  the  destruction  of  the  mortgage,  with  interest  from  that 
date  at  seven  per  cent.  only.  The  court  say,  "  Had  the  property  destroyed  or  rendered  value- 
less been  a  house  or  a  horse  instead  of  a  promissory  note,  the  damages  would  not  have  been 
the  value  of  the  house  or  horse,  Avith  the  amount  added  which  the  plaintiff'  would  otherwise 
have  received  for  rent  or  hire,  but  the  value  of  the  property  destroyed,  with  seven  per  cent,  per 
annum."     Sanboi-n  v.  Webster,  2  Minn.  323. 

With  due  submission  to  the  learned  court,  the  cases  denying  the  right  to  recover  profits, 
given  in  illustration,  do  not  seem  to  us  "  the  same  in  princi])le,"  and  the  rule  adopted  appears 
questionable  as  falling  short  of  giving  full  compensation.  The  rate  of  interest  wliich  the  note 
bore,  having  been  as  applied  to  such  a  note,  a  legal  one  in  that  State,  the  plain tiflf'  would  seem 
as  much  entitled  to  recover  it,  as  he  would  have  been  entitled  to  recover  what  was  lawful 
interest  in  a  State  where  the  legal  rate  was  uniform.  The  injured  party  failed  to  receive  the 
actual  indemnity  which  the  law  aims  to  give.  The  loss  of  profit  is  a  difi^erent  question  ;  but 
even  regarding  the  case  as  one  of  the  loss  of  profit  simply,  yet  that  loss  having  been  as  direct 
and  cerhiin  a  result  of  the  wrong  as  the  loss  of  the  principal  sum,  it  seems  that  it  should  have 
been  allowed. 

In  an  action  of  trespass  on  the  case,  diminution  of  the  value  of  the  property  for  purposes  of 
renting,  and  the  hindrance  to  the  plaintiff's  servants  in  performing  their  labor,  and  damage 
resulting  from  water  passing  through  a  hole  in  the  roof,  caused  by  an  explosion  from  a  neigh- 
boring quarry,  are  consequential  damages,  and  as  such  are  recoverable.  Scott  v.  Bay,  3  Md. 
431. 
>.  Where  a  municipal  corporation  had  rendered  themselves  liable  to  the  plaintiff  for  damages 
for  injuries  to  his  manufactory,  occasioned  by  excavations  in  the  course  of  street  improvements, 
made  under  direction  of  the  corporation,  it  Avas  held  that  the  plaintiff  was  entitled  to  com]iensa- 
tion  for  the  loss  of  profits  during  the  suspension  of  his  business  as  a  manuf\icturcr,  it  having 
been  ])roved  that  the  suspension  was  a  necessary  consequence  of  the  injuries  to  his  property, 
for  which  the  defendants  were  liable,  and  that  the  profits  claimed  would  certainly  have  been 
realized.    Lacoury.  The  Mayor,  &c.,  of  New  York,  2  Duer  (N.  Y.),  406.  And  where  the  plam 


88  CONSEQUENTIAL   DAMAGES.  [cil.    III. 

[81]  Incidental  Expenses.  —  So  again,  where  the  defend- 
ant had  taken  a  horse  and  wagon  belonging  to  the  plain- 
tiffs. They  spent  four  days  in  searching  for  the  horse  and 
Avagon,  and  incurred  other  expenses  in  the  search.  A  verdict 
was  given  for  the  time  spent,  and  expenses  incurred  in  the 
pursuit.  It  was  objected  that  the  damages  were  too  remote; 
but  the  verdict  was  retained  by  the  Supreme  Court ;  and  con- 
siderable stress  was  laid  on  the  circumstance,  that  the  damages 
were  occasioned  by  the  wrongful  act  of  the  plaintiff.^ 


"*  1 


Civil  Law  Rules.  —  In  these  cases  the  decisions  appear  to 
follow  the  analogy  of  the  civil  law,  in  whiich,  as  we  have  seen, 
the  party  suffering  from  dolus  or  culpa  lata,  was  held  entitled  to 
more  liberal  remuneration  than  he  who  was  injured  by  culpa  levis 
only.  "  The  better  opinion  is,"  says  one  of  the  German  com- 
mentators on  the  Roman  law,  "  that  in  cases  where  the  injury 
is  caused  by  fraud,  gross  negligence,  or  malice  [contimiacia),  the 
plaintiff  is  entitled  to  reparation  as  well  for  the  profit  lost  [lu- 
crum cessans),  as  the  actual  injury  done  [damnum  emergens);  but 
that,  on  the  contrary,  where  the  defendant's  illegal  act  does 
not  rise  beyond  the  grade  of  ordinary  fault  [culpa),  he  is  only 
responsible  for  actual  loss."!  In  other  words,  where  the  act 
complained  of  is  one  greatly  to  be  censured,  of  evil  example, 
and  likely,  from  its  very  nature,  to  be  fraught  with  injurious 
results,  although  not  of  so  flagrant  a  character  as  to  warrant 
vindictive  damages,  the  law  will  not  nicely  attempt  to  limit  the 
amount  of  reparation,  but  will  pursue  the  wrong-doer  with 
severity,  and  extend  the  line  of  relief,  so  as  to  embrace  all  the 
consequences  of  his  conduct,  although  somewhat  remote  from 
the  original  transaction.^ 


"&' 


[82]  Limits  of  Remuneration.  —  But,  as  a  general  rule,  it 
may  be  said  that  in  cases  of  tort  without  aggravation, 
where  the  conduct  of  the  defendant  cannot  be  considered  so 
morally  wrong  or  grossly  negligent  as  to  give  a  right  to  ex- 
emplary or  vindictive  damages,  the  extent  of  remuneration 
is  restricted,  according  to  the  principles  which  we  have  been 

*  Bennett  v.  Lockwood,  20  Wend.  22.3.  t  Haenel  von  Schadenersatze.    The  original 

citation  will  be  found  supra,  at  p.  24. 

tiff's  toll-bridge  was  carried  away,  through  the  fault  of  the  defendants,  it  was  held  that  the 
damages  recoverable  would  be  the  value  of  the  su])crstructurc  destroyed,  and  the  loss  of  the 
tolls  during  the  time  reasonably  necessary  to  rebuild.  Sewall's  Falls  Bridge  v.  Fisk,  .'3  Fost. 
(N.  H.)  171.     See  Ludlow  v.  The  Village  of  Yonkcrs,  43  Barb.  (N.  Y.)  493. 

1  See  Miller  v.  Garling,  12  How.  P.  R.  20.3. 

'^  But  sdG  post,  114,  note.  , 


CH.    III.]  CONSEQUENTIAL   DAMAGES.  89 

considering,  to  the  immediate  consequence  of  the  illegal  act. 
"  The  rule  of  law  is  well  established,  that  in  cases  of  torts 
it  is  necessary  for  the  party  complaining  to  show  that  the 
particular  damages  in  respect  to  which  he  proceeds,  are  the  legal 
and  natural  consequences  of  the  wrongful  act  imputed  to  the 
defendant."*^  This  general  principle  has  been  recognized  in  a 
multitude  of  cases.  Thus,  where  an  action  was  brought  by  the 
proprietor  of  a  theatre  against  the  defendant  for  having  written 
a  libel  upon  one  of  the  plaintiff's  singers,  by  which  she  was  de- 
terred from  appearing,  and  alleging  that  his  profits  were  con- 
sequently lost.  Lord  Kenyon  held  the  injury  much  too  remote  to 
be  the  foundation  of  an  action,  saying,  that  if  an  injury  had  been 
suffered,  it  was  occasioned  entu^ely  by  the  vain  fears  or  caprice 
of  the  actress.f  ^ 

So  where  in  an  action  for  an  assault,  the  plaintiff  sought  to 
prove  as  special  damages,  that  by  reason  of  the  assault  he  was 
driven  from  Alicant,  in  Spain,  where  he  had  previously  done 
business  as  a  merchant,  it  was  held  by  flir  too  remote.^ 

So  in  case  for  seduction.  The  plaintiff's  daughter  was  seduced 
and  the  connection  broken  off;  in  consequence  of  the  distress 
of  mind,  occasioned  by  the  desertion,  the  young  woman  became 
ill,  and  the  loss  of  service  resulted  from  the  illness.  The  Lord 
Chief  Baron  of  the  Exchequer  held  at  the  trial  that  the  damage 
was  too  remote,  saying  that  it  was  caused  by  the  abandonment, 
not  by  the  seduction. §  ^ 

So  in  Alabama,  in  case  for  malicious  prosecution  whereby  the 
plaintiffs  were  driven  to  an  assignment,  the  loss  in  the  sale  of 
the  goods  made  under  the  assignment  is  not  a  proximate  or 
natural  consequence  of  the  malicious  prosecution.||  ^ 

*  Clark  V.  Brown,  18  Wendell,  213-229.  §  Boyle  v.  Brandon,  13  M.  &  W.  738.     On 
t  Ashley  V.  Harrison,  Pcake,  N.  P.  Cases,     argument  this  was  thonght  douhtful,  but  the 

194;  S.  C'.  1  Esp.  48.  point  was  not  decided. 

I  Moore  v.  Adams,  2  Chitty's  E.  198.  ||  Donnell  v.  Jones,  13  Ala.  490. 

1  A  publisher  of  a  paper  who  merely  by  mistake  neglects  to  insert  an  advertisement  of  the 
sale  of  real  estate,  is  liable  only  for  the  amount  paid  for  the  advertisement,  not  for  speculative 
damages.     Eisenlohr  v.  Swain,  35  Penn.  State,  107. 

2  Nor  are  the  profits  expected  fi-om  a  singer's  pcrlbrmances  certain  enough  to  be  recovered 
in  an  a'ction  by  the  lessee  of  an  opera-house  against  the  lessor  for  breach  of  a  contract  to 
furnish  it  by  a  certain  time  for  the  lessee's  use.  Academy  of  Music  v.  Hackett,  2  Hilt.  (N.  Y.) 
217. 

The  negligent  burning  of  a  building,  the  fire  from  which  spreads  to  an  adjoining  house, 
is  too  remote  to  give  the  owner  of  the  latter  house  a  cause  of  action  on  the  ground  of  the 
negligent  act  which  origiiiated  the  fire.     Ryan  v.  The  N.  Y.  Central  R.  R.  Co.  35  N.  Y.  210. 

**  See  Knight  v.  Wilcox,  14  N.  Y.  413,  Mhere  similar  views  were  maintained  b\^  the  New 
York  Coixrt  of  Appeals  reversing  the  judgment  of  the  Supreme  Court  of  that  State.  In  an 
action  for  seduction,  evidence  of  the  probable  expense  of  supporting  the  illegitimate  child 
cannot  be  admitted  to  enhance  the  damages.     Haynes  v.  Sinclair,  23  Vt.  108. 

*  The  same  rule  was  sternly  maintained  by  a  majority  of  the  English  Court  of  Common 
Bench  in  a  case  where  the  malicious  prosecution  involved  willful  perjury,  forgery,  and  a  fraud 
on  the  court.  Eitzjohn  v.  McKinder,  2  L.  T.  (N.  S.)  374.  Compare  Burnap  v.  Wight,  14 
111.301. 


90  CONSEQUENTIAL    DAMAGES.  [CII.    III. 

[83]  So  in  New  York,  in  an  action  on  the  case  against  a  rail- 
road company,  for  injuries  resulting  from  a  collision,  the 
plaintift'  proved  that  his  leg  was  broken,  and  that  the  oblique 
character  of  the  fracture  rendered  it  very  probable  that  a  sec- 
ond fracture  would  take  place  ;  but  this  the  Supreme  Court  held 
too  remote.  The  present  and  probable  future  condition  of  the 
limb  were  proper  matters  for  inquiry  ;  but  the  consequences  of 
a  hypothetical  second  fracture  were  obviously  beyond  the  range 
of  it,  and  calculated  to  draw  the  minds  of  the  jury  into  fanciful 
conjectures.*  -^ 

So  in  Massachusetts,  where  a  contractor  for  the  support  of 
town  poor,  at  a  fixed  sum  per  annum,  was  bound  to  support 
them  in  sickness  and  health,  at  his  own  risk,  and  the  defendant 
committed  an  assault  and  battery  on  one  of  the  paupers,  by 
means  of  which  he  was  hurt,  and  the  plaintiff  put  to  increased 
expense  for  his  support,  the  damage  was  held  too  remote  and 
indirect  to  sustain  an  action. f 

So  in  slander,  in  an  action  for  slanderous  words  not  actionable 
in  themselves,  the  plaintiff  cannot  prove  that  he  sustained 
special  damage  by  means  of  the  repetition  by  a  third  person  of 
the  words  uttered  by  the  defendant.^  So,  also,  in  England, 
where  in  slander  special  damage  was  alleged,  from  words  spoken 
by  the  defendant,  held  that  this  allegation  could  not  be  sup- 
ported by  proof  that  the  defendant  had  spoken  the  words  to  a 
third  party,  and  that  damage  ensued  in  consequence  of  the  third 
party  repeating  them,  without  authority,  as  the  words  of  the 
defendant.  And  Tindal,  C.  J.,  said,  "  No  effect  whatever  fol- 
lowed the  first  speaking  of  the  words.  Every  man  must  be 
taken  to  be  answerable  for  the  necessary  consequences  of  his 
own  wrongful  acts.  But  such  a  spontaneous  and  unauthorized 
communication  cannot  be  considered  as  the  necessary  conse- 
quence of  the  uttering  of  the  words."  §  ^ 

*  Lincoln  v.  Saratoga  and  Schenectady  R.  to  Lord  Northampton's  case,  12  Coke,  134,  the 

E.  Co.  2,3  Wend.  425.  repetition  of  slander  might  he  justified  by  giv- 

t  Anthony  w.  Slaid,  11  Met.  290.  ing  the  original  author  of  the  slander;    hut 

X  Stevens  v.  Hartwell,  11  JNIet.  542.  this  has  long  since  been  overruled.     McPher- 

§  Ward  V.  Weeks,  7  Bing.  211.     According  son  v.  Daniels,  10  B.  &  Cres.  263. 

1  One  action  only  can  he  maintained  to  recover  damages  for  a  personal  injury  (post,  109). 
Yet  it  is  not  necessary  for  the  injui-ed  person  to  wait  until  all  the  consequences  of  the  injury 
have  become  fully  developed.  He  is  entitled  to  sue  whenever  he  thinks  ])roper,  and  to  recover 
damages  for  both  past  and  future  pain  of  body,  as  well  as  for  past  and  future  de]n-ivation  of 
health,  or  of  any  of  his  bodily  powers.  But  in  respect  to  all  the  sulijects  of  damage,  it  is 
requisite  that  they  should  he  the  legal,  direct,  and  necessary  results  of  the  injury,  and  that 
those  which  at  the  time  of  the  trial  are  prospective,  should  not  be  conjectural.  Damages 
arising  from  bodily  pain  and  suffering  need  not  be  alleged  specially  in  the  complaint.  Cur- 
tiss  V.  The  Ilochester  and  Syracuse  Railroad  Company,  20  Barb.  (N.  Y.)  282 ;  aihrmcd,  18  N. 
Y.  534. 

^  In  an  action  of  slander  for  words  spoken  to  the  husband  of  the  wife,  which  were  highly 


CH.    III.]  CONSEQUENTIAL   DAMAGES.  91 

Where  the  defendants,  after  a  will  had  been  made  and  exe- 
cuted davising  certain  real  estate  to  the  plaintiff,  conspired 
with  each  other  to  induce  the  testator  to  revoke  it,  and  [84] 
effected  their  object  by  means  of  false  and  fraudulent  rep- 
resentations ;  held  that  the  plaintiff  could  not  maintain  an 
action,  as  the  damage  which  he  sustained  was  merely  by  reason 
of  being  deprived  of  an  expected  gratuity,  and  not  by  an  inter- 
ference with  any  of  his  rights.  "  The  plaintiff  had  no  interest 
in  the  property  of  which  he  says  he  has  been  deprived  by 
the  fraudulent  interference  of  the  defendant,  beyond  a  mere 
naked  possibility  ;  an  interest  altogether  too  shadowy  and  evan- 
escent to  be  dealt  with  by  courts  of  law."  * 

In  an  action  for  false  imprisonment  on  board  a  ship,  the  plain- 
tiff cannot  recover  as  special  damage  the  exjDcnse  he  incurred 
in  leaving  the  ship  and  taking  his  passage  on  board  another,  un- 
less the  imprisonment  continued  to  the  moment  of  his  tranship- 
ment, and  was  the  immediate  cause  thereof;!^  as,  if  he  acted  to 
save  his  life,  or  from  a  reasonable  regard  to  his  safety.^ 

*  Hatchins  v.  Hntcliins,  7   Hill,  104.     So,  carried  if  the  necessary  connection  were  not 

case  will  not  lie  for  a  conspiracy  to  bring  an  insisted  on.  Lord  EUenborough  alluded  to  a 

unfounded  suit  in  the  name  of  a  pauper,  un-  case  which  used  to  be  cited  by  Lord  Alvanley, 

less  damage  results.    See  Colleville  v.  Jones  el  -where   the   plaintiff  complained   of  false  im- 

al.  11  G.  B.  712.  prisonment,  7W  (/»oJ  being  confined  on  shore 

t  Boyce  v.  Bayliflfe,  1  Campb.  5S ;  where,  to  he  lost  a  lieutenancy, 
show  how  far  attempts  of  the  kind  might  be 

defamatory,  and  in  consequence  of  which  he  turned  her  out  of  doors,  but  which,  under  what 
Lord  Brougham  with  his  accustomed  vigor  characterized  as  "  the  bai'barous  state  of  the 
English  law,  according  to  which  the  imputation,  by  words  however  gross,  on  an  occasion 
however  public,  upon  the  chastity  of  a  modest  matron  or  pure  virgin,  is  not  actionable  with- 
out proof  that  it  has  actually  produced  special  temporal  damages  to  her,"  were,  as  not  im- 
puting actual  adultery,  not  actionable  in  themselves,  it  was  lately  held  l)y  the  House  of  Lords 
reversing  the  judgment  of  the  Irish  Exchequer,  and  affirming  that  of  the  Irish  Queen's  Bench, 
that  the  wife's  loss  of  her  husband's  consortium  was  not  the  natural  and  probable  consequence 
of  the  slander,  as  the  conduct  of  the  credulous  husband  was  unreasonable.  Lynch  v.  Knight, 
5L.  T.  (N.  S.)  291. 

1  So  in  an  action  for  false  imprisonment,  where  the  plaintiff  offered  to  prove  as  special  dam- 
age that  having  been  imprisoned  till  after  two  o'clock,  p.  m.,  and  become  unwell  from  his  im- 
prisonment, he  did  not  go  to  a  certain  place  where  he  would  have  obtained  a  situation  if  he 
had  appeared  at  two  o'clock,  the  alleged  damage  was  held  too  remote.  Hoey  v.  Felton,  31  L. 
J.  R.  (N.  S.)  C.  P.  10.5  ;  5  Law  Times  (N.  S.),  354  ;  11  C.  B.  (N.  S.)  142. 

2  So  the  loss  of  an  office  for  which  an  application  had  been  made  by  the  plaintiff  before  the 
assaidt  and  battery,  but  withdrawn  after  it  because  of  the  disability  occasioned  by  the  battery, 
as  the  plaintiff  alleged,  was  held  too  inconsequential  to  be  considered,  although  alleged  in  the 
declaration.     Brown  v.  Cummings,  7  Allen,  507. 

The  following  late  case  deserves  citation.  Where  the  plaintiff  was  engaged  by  the  defendant 
at  a  salary,  and  with  the  further  compensation  of  a  house  to  live  in,  or  a  stipulated  sum  in 
lieu  of  it,  and  was  also  to  receive  a  gift  of  £20  if  he  remained  till  Lady-day  following,  and 
before  the  end  of  the  term  was  wrongfully  dismissed  and  ordered  to  leave  the  house  he  had 
been  put  into  under  the  agreement  but  refused  to  do  so,  and  the  defendant  removed  the  goods 
and  furniture  to  a  barn,  from  which  the  plaintiff  might  have  taken  them  if  he  had  chosen, 
and  while  the  goods  were  in  the  barn  it  was  broken  into  and  some  of  the  goods  damaged,  and 
£70  taken,  it  was  held  that  the  jury  in  assessing  the  damages,  had  a  right  to  consider  the 
£20  which  the  plaintiff  would  have  eaVned  if  he  had  been  perniitted,  but  not  the  loss  of  goods 
and  money,  as  the  relationship  of  landlord  and  tenant  did  not  exist  between  the  parties,  and 
the  defendant  had  therefore  a  right  to  remove  the  goods.  Lake  v.  Campbell,  5  L.  T.  R. 
(N.  S.)  582.  « 

For  a  clear  illustration  of  the  principle  of  the  exclusion  of  secondary  damages  in  an  action 
of  tort  on  the  ground  of  remoteness,  see  Stone  v.  Codman,  15  Pick.  297,  cited  on  another 
point,  post,  454. 


92  CONSEQUENTIAL    DAMAGES.  [CH.    III. 

Statutes.  —  The  same  princii^le  has  also  been  apphotl  to  tlie 
construction  of  statutes.  An  action  was  brought  in  tlie  King's 
Bench,  on  the  stat.  1  Geo.  I.,  st.  2,  c.  5,  §  6,  against  the  liundred 
for  reparation  in  damages  on  account  of  rioters  having  pulled 
down  in  part  the  plaintiff's  dwelling-house  ;  and  there  was  a 
second  count  for  beginning  to  pull  down  an  out-house.  The 
plaintiff  was  a  baker.  It  was  proved  that  the  inob  compelled 
the  plaintiff'  to  sell  a  quantity  of  flour  at  a  price  much  below 
its  value  ;  that  they  then  began  to  break  the  Avindows  of  the 
bakehouse,  and  of  his  dwelling-house.  Beside  this,  they  burst 
open  the  lock  of  a  warehouse  belonging  to  the  plaintiff  on  the 
other  side  of  the  street,  and  threw  some  flour  into  the  street. 
It  was  held  that  the  damage  done  the  warehouse,  was  an  act  not 
consequential  to  the  other  —  and  that  the  flour  which  the  mob 
compelled  the  plaintiff  to  sell,  was  not  a  damage  recover- 
[85]  able  against  the  hundred.*  And  the  same  point  was  held 
in  another  action  brought  against  the  hundred,  as  to  flour 
taken  away  or  stolen  by  a  mob.f 

So  in  an  action  in  Massachusetts,  on  what  is  called  the  mill  act, 
to  recover  damage  for  the  flowage  of  land,  the  plaintiff  offered 
to  prove  that  the  flowed  land,  when  the  water  was  drawn  off, 
emitted  offensive  and  noxious  smells,  and  claimed  damages 
therefor.  But  it  was  rejected  ;  the  court  saying  that  the  law 
did  not  justify  an  allowance  for  remote,  possible,  or  speculative 
damages.t 

But  where,  in  Massachusetts,  it  was  declared  by  statute  that 
any  owner  or  keeper  of  a  dog,  should  "  forfeit  to  any  person 
injured  by  such  dog,  double  the  damage  siisiaincd  hij  him  ;  "  it  was 
held  in  expounding  that  statute,  that  when  the  plaintiff  brings 
such  action  for  the  injury  done  to  a  minor  child,  he  is  entitled 
to  recover  for  the  loss  of  his  services,  and  the  expense  of  his 
cure.§ 

But  in  Connecticut,  towns  liable  to  pay  "just  damages  "  for 
defects  in  bridges  or  roads,  are  not  liable  for  consequential  dam- 
ages, such  as  the  loss  of  service,  expense  of  nursing  resulting  to 
a  person  for  injuries  to  his  wife  and  daughter. ||  To  this  branch 
of  our  subject  we  shall  again  advert  when  we  come  to  the  sub- 
ject of  statutes. 

Cases  Adopting  a  Wider  Rule.  —  Having  thus  far  illustrated 
the  application  of  the  general  rules  which   prohibit  remote  or 

,    *  Burrows  v.  Wright,  1  East,  615.  §  McCarthy  v.  C4uikl,  12  Met.  291. 

t  Greaslcy  v.  Higginbottom.  1  East,  636.  1|  Chidsey  v.  Canton,  17  Conn.  475. 

\  Earacs  v.  New  England  Worsted  Co.  11 
Met.  570. 


CH.    III.]  CONSEQUENTIAL   DAMAGES.  93 

consequential  damages,  by  an  examination  of  those  cases  where 
they  have  been  denied,  we  now  come  to  consider  those  in- 
stances in  which  a  wider  rule  of  construction  has  been  adopted. 
They  will  be  found  •  to  be  few,  and  may,  I  think,  generally  be 
said  to  belong  to  the  class  of  cases  which  the  civil  law  ranks 
under  dolus,  or  culpa  Ma.  This  distinction  has  even  been  inti- 
mated in  cases  of  contract. 

Perhaps  the  strongest  case  is  one  in  the  English  Common 
Pleas,  where  an  action  was  brought  on  the  warranty  of  a  chain- 
cable,  tliat  it  should  last  two  years,  as  a  substitute  for  a  rope 
cable  of  sixteen  inches ;  and  it  was  alleged,  that  within  the  two 
years  the  cable  broke,  and  that  thereby  an  anchor,  to 
which  the  cable  w\as  athxed,  was  lost.  A  verdict  being  [86] 
found  for  the  value  of  cable  and  anchor,  a  motion  was 
made  for  a  new  trial,  and  it  was  insisted  that  the  principle  con- 
tended for  by  the  plaintiffs  would  render  the  defendants  liable 
for  the  loss  of  the  ship,  if  on  the  breaking  of  the  cable  that 
event  had  happened.  But  the  loss  was  held  not  too  remote ; 
and  Dallas,  C.  J.,  said,  "  The  defendants  warrant  the  cable  suffi- 
cient to  hold  the  anchor ;  and  it  is  proved  not  to  be  sufficient. 
The  holding  of  the  anchor  by  the  cable  is  the  very  essence  of 
their  warranty ;  "  and  a  new  trial  was  refused.*  ^ 

And  where  an  agreement  had  been  made  to  let  certain  prem- 
ises as  a  tavern  stand,  and  the  plaintiff  had  removed  his  family 
to  take  possession,  which  was  refused,  it  was  held  that  the  plain- 
tiff was  entitled  to  recover,  not  only  the  value  of  the  lease,  but 
also  his  expenses  in  removing  his  ftimily  and  furniture,  and  this 
without  any  allegation  of  special  damage  in  the  declaration.! 

A  case  very  analogous  to  this  was  decided  in  Massachusetts, 
where  a  defendant  had  engaged  the  plaintiff  to  remove  to  In- 
diana, to  carry  on  business  there,  and  failed  to  furnish  the  stock 
necessary  for  so  doing ;  the  court  allowed  the  plaintiff  as  dam- 
ages, compensation  for  the  loss  of  his  time  in  removing  to  Indi- 
ana and  back  again  to  his  original  domicil.l  ^ 

*  Borradaile  v.  Brunton,  8  Taunton,  535.  t  Driggs  v.  Dwight,   17  Wend.   71  ;   Law- 

S.  C.  2  J.  B.  jNIoore,  582.     Either  the  case  is  rence  v.  Wardwell,  6  Barb.  S.   C.  42.3.    See 

ill  reported,  or  the  learned  Chief  Justice  gave  also,  Giles  v.  O'Toole,  4  Barb.  S.  C.  261;  and 

the    warranty    a    very    broad    construction;  see  Ward  i;.  Smith,  11  Price,  19. 

nothing  is  said  in  Taunton  about  the  "  cable  %  Johnson  v.  Arnold,  2  Cush.  46. 
being    warranted   sutlicient   to   hold    the   an- 
chor." 


1  But  see  Hitchcock  v.  Hunt,  28  Conn.  .343  (po.sf,  292,  note). 

'^  So  in  New  Hampshire,  where  the  defendant  jjroposed  by  letter  to  tlie  plaintiff  that  the 
latter  should  come  to  that  State  from  Wisconsin,  agreeing,  if  he  would  do  so,  to  give  him  and 
his  wife  a  year's  board,  and  allow  him  to  carry  on  the  defendant's  farm ;  it  was  held  that  the 


94  CONSEQUENTIAL   DAMAGES.  [CIL    III. 

In  an  early  case,  in  wliich  the  plaintiff  declared  for  breach  of 
an  agreement  to  let  the  plaintiff  have  the  use  of  certain  mills 
for  six  months,  in  consideration  of  .£10,  it  appeared  that  the 
mills  were  worth  but  £20  per  annum,  and  yet  damages  were 
given  to  £500,  by  reason  of  the  stock  laid  in  by  the  plaintiff; 
and,  per  curiam,  "  the  jury  may  well  find  such  damages,  for  they 
are  not  only  bound  to  give  the  £10,  but  also  all  the  special 
damages."  * 

In  a  recent  case  in  New  York,  the  Supreme  Court  of  that 
[87]  State,  commenting  on  this  case,  said,  "  Very  likely  it  ap- 
peared that  the  breach  of  contract  was  committed  to  favor 
some  particular  interest  of  the  defendant,  or  his  friend,  though 
the  case  mentions  a  simple  refusal  to  perform  ; "  f  but  perhaps  it 
may  rather  be  brought  within  the  rule  of  the  French  law,  both 
parties  knowing  the  object  to  which  the  mills  were  to  be  applied, 
and  the  loss  of  the  plaintiff's  stock  being  considered  as  contem- 
plated by  them. 

In  another  recent  case  in  New  York,  the  plaintiff  sued  the 
defendant  in  covenant  for  not  maintaining  a  ferry  in  good  order, 
according  to  the  agreement  contained  in  a  lease  made  to  him  by 
the  plaintiff.  The  plaintiff  proved,  that,  instead  of  keeping  the 
ferry  in  good  order,  the  defendant  had  discontinued  it,  and 
transferred  it  to  another  wharf  of  his  own,  by  means  of  which 
a  tavern  stand  of  the  plaintiff  at  the  original  ferry,  which  he 
had  previously  let  at  $300,  was  injured  in  its  business,  so  that 
he  could  not  let  it  at  all.  The  judge  at  the  trial  ruled  that 
the  plaintiff  was  entitled  to  recover  his  actual  damages  sustained 
in  the  loss  of  rent ;  and  the  jury  found  a  verdict  for  $225. 
A  new  trial  was  denied,  the  court  holding  "  that  the  damages 
proved  were  a  legitimate  claim,  and  the  legal  and  natural  conse- 
quences of  the  breach  of  the  covenant."  t 

In  the  case  above  cited,§  the  Supreme  Court  of  New  York, 
commenting  on  this  last  case,  said,  ''  It  must  have  been  regarded 
as  a  fraudulent  breach  of  covenant  to  keep  a  ferry  in  repair, 
which  materially  benefited  the  plaintiff's  tavern.  The  defend- 
ant left  it  unrepaired,  in  order  to  favor  his  own  ferry;  and  there- 
fore damages  were  allowed,  for  loss  of  custom  at  tlie  plaintiff's 
inn." 

*  Nurse  v.  Barnes,  T.  Raym.  R.  77.  %  Dewint  v.  Wiltse,  9  Wend.  325. 

t  Blanchard  v.  Ely,  21  Wend.  342.  §  Blanchard  v.  Ely,  21  Wend.  342. 

expenses  incurred  by  the  plaintiff  in  rcmovinr;;  his  family,  and  probalily  compensation  for  his 
necessary  loss  of  time  might  be  recovered,  and  perhaps  also  tlie  full  value  of  the  board  and  of 
the  year's  produce  of  the  farm,  without  deduction  for  the  plaintiff's  Labor  in  carrying  on  the 
farm,  unless  he  was  offered  and  engaged  in  a  similar  employment ;  but  without  a  special 
agreement,  not  losses  sustained  by  the  plaintiff  in  selling  his  property  at  a  sacrihce  with  a  view 
to  the  removal.     Woodbury  v.  Jones,  44  N.  H.  20G. 


CII.   III.]  CONSEQUENTIAL   DAMAGES.  95 

Motive  not  to  be  Considered.  —  The  ground  taken  in  expla- 
nation of  these  cases,  by  the  learned  Supreme  Court  of  New 
York,  cannot,  I  think,  with  great  deference,  be  maintained.  It 
supposes  that  the  remote  or  consequential  damages  were  given 
on  the  ground  that  the  contracts  were  fraudulently  violated. 
This  assumes,  that  in  actions  on  contracts,  ex  contractu,  the  dam- 
ages will  vary  according  to  the  intention  of  the  party  in  de- 
fault ;  and  that  evidence  may  be  received,  and  damages 
will  be  awarded,  in  regard  to  the  motives  of  the  defendant.  [88] 
When  we  come  to  consider  the  general  rules  which  con- 
trol the  measure  of  damages  in  actions  on  contract,*  I  believe  I 
shall  be  able  to  show  that  this  suggestion  is  untenable,  and  that 
if  these  cases  are  to  be  considered  as  well  decided,  some  other 
explanation  of  them  must  be  given.^ 

Illegal  and  Mischievous  Acts.  —  We  have  already  seen,t  that 
in  cases  of  illegal  or  mischievous  conduct,  the  disposition  of  the 
courts  is  to  make  the  party  in  the  wrong  liable  for  injurious 
consequences  flowing  from  the  illegal  act,  although  they  be  very 
remote.^ 

So  where  the  defendant  had  not  repaired  his  fence,  by  reason 
of  which  the  pl;iintiff''s  horses  escaped  into  the  defendant's  close 
and  were  there  killed  by  the  falling  of  a  hay-stack,  the  court 
considered  that  such  damage  was  not  too  remote.§  ^ 

*  Post,  ch.  vii.  Black.  892  ;  Vandenburgh  v.  Truax,  4  Denio, 

t  .S'Hpra,  79,  80.  464. 

\  Supra,   80,   81  ;   Scott  v.    Shepherd,    W.         §  Powell  u.  Salisbury,  2  Y.  &  Jer.  391. 

1  But  see  post,  206,  note  1. 

2  So  wiiere  in  a  late  case  thi'ough  the  defect  of  a  gate  which  the  defendant  was  bound  to 
repair,  his  horse,  which  was  not  shown  to  be  vicious,  strayed  into  the  plaintit}''s  field  and  there 
kicked  the  plaintiff's  horse,  the  damage  was  held  not  too  remote.  Lee  v.  Riley,  34  L.  J.  R. 
(N.  S.)  C.  P.  212. 

So  in  Vermont,  where  the  statute  provided  that  a  party  neglecting  to  keep  in  repair  his 
part  of  a  fence,  should  "  be  liable  for  all  damages  done  to  or  suffered  by  the  opposite  party  in 
consequence  of  such  neglect,"  and  in  consequence  of  the  defective  condition  of*  the  defendant's 
fence,  the  plaintiff's  horses  escaped  into  the  defendant's  pasture,  where  they  were  gored  by  a 
vicious  bull  of  the  defendant ;  the  damage  was  held  not  too  remote,  the  court  considering 
the  defendant's  liability  very  much  that  of  a  jiarty  at  common  law —  "  bound  to  do  an  act,  from 
the  omission  to  do  which  an  injury  results  to  others,"  and  not  regarding  it  as  indispensable  to 
the  maintenance  of  the  action  that  the  vicious  habits  of  the  bull  should  have  been  known  to  the 
defendant.     Saxton  v.  Bacon,  31  Vermont,  540. 

So  in  a  case  in  the  Irish  Court  of  Queen's  Bench,  arising  under  Lord  Campbell's  act  (9  and 
10  Vict.  c.  93),  where  it  appeared  that  the  deceased  was  precipitated  into  the  lock  of  a  canal 
through  the  defendant's  negligence,  and  while  there,  was  suffocated  in  consequence  of  the  lock- 
keeper  letting  the  water  into  the  canal,  it  was  held  that  the  representatives  of  the  deceased 
could  maintain  the  action.  Byrne  v.  Wilson,  15  Ir.  Com.  Law,  332.  See  Jones  v.  Boyce,  1 
Stark.  493. 

But  damages  for  consequential  injuries  not  amounting  to  trespass,  cannot  be  recovered  in  an 
action  of  trespass  (q.  c.f.)  unless  they  result  from  an  act  of  trespass.  Therefore,  in  such  an 
action  for  removing  a  fence,  the  plaintiff  cannot  recover  for  damages  done  his  crop  in  conse- 
quence of  the  removal  of  the  fence,  by  cattle  not  belonging  to  the  defendant,  without  proof 
that  the  fence  was  his,  or  that  the  defendant  committed  a  trespass  in  removing  it.  Richardson 
V.  Millburn,  11  Md.  340. 


96  CONSEQUENTIAL   DAMAGES.  [cil.    III. 

'So  where  the  defendant  drove  against  the  plaintiff's  carriage, 
and  by  the  shock  the  plaintiff's  friend  was  thrown  off  the  seat 
on  to  the  dashing-board,  and  the  dashing-board  falling  on  the 
horse,  he  kicked  and  broke  it ;  it  was  held  that  all  the  damage  so 
sustained  was  recoverable  in  trespass.* 

Deprivation  op  Service. — So  where  the  injury  complained  of 
was,  that  the  defendants  had  invited  the  plaintiff's  servants  to 
dinner,  and  induced  them  to  leave  him  ;  the  injurious  conse- 
quence complained  of  was,  that  the  plaintiff  had  lost  the  profits 
of  the  sales  of  pianos  for  two  years ;  and  this  was  held  not  to 
be  too  remote,  although  the  servants  were  not  hired  by  the 
plaintiff  for  any  definite  period,  but  worked  by  the  piece.  Mr. 
J.  Richardson  remarks,  "  The  measure  of  damages  he  is  entitled 
to  receive  from  the  defendants  is  not  necessarily  to  be  confined 
to  those  servants  he  might  have  in  his  employ  at  the  time  they 
were  so  enticed,  or  for  the  part  of  the  day  on  which  they  ab- 
sented themselves  from  his  service;  but  he  is  entitled  to  recover 
damages  for  the  loss  he  sustained  by  their  leaving  him  at  that 
critical  period. f 

But  where  the  plaintiff  sued  the  defendant  in  case  for  the  loss 
of  service  of  a  servant,  resulting  from  the  accidental  collision 
with  the  defendant,  it  was  held  in  England  t  that  the  damage 
was  too  remote ;  though  case,  and  not  trespass,  would  have  been 
the  proper  remedy,  if  the  servant  had  been  plaintiff.§  ^ 

*  Gilbertson  v.  Richardson,  5  Man.  Gr.  &  S.  evil  purpose  or  ill-will  towards  master  or  slave, 

502.  had  violated  the  law  only  for  iiis  own  gain. 

t  Gunter  v.  Astor  et  al.  4  Moore's  Rep.  12  They  found  for  plaintiff",  $650,  the  value  of 

(16  Eng.  Com.  Law.  Rep.  357).  the  shave. 

X  Martinez  v.   Gerber,  3   Scott,  New  Rep.  On  appeal,  it  was  said.  It  would  be  vain  to 

386.  attempt   to    lay  down    any  general    rules,  by 

§  I  owe  to  the  courtesy  of  the  Hon.  James  whith  consequences  that  shall  be  answered  for, 

Gregg  of  South  Carolina,  the  report  of  the  and  those  which  are  too  remote  for  considera- 

following  case,  Berkley  v.  Harrison,  decided  in  tion,  may  be  always  distinguished  ;  but,  ac- 

May,  1847,  by  the  Court  of  Appeals  in  that  cording  to  the  general  course  of  decision  on 

State.    See  South  Carolina  Temperance  Ad-  this  point,  it  would  seem  that  where,  as  in 

vocate,  June  10,  1847.     The  paper  also  con-  this  case,  the  mischievous  purpose  is  manifest, 

tains   an   able   argument   by   Mr.    Gregg,   as  or  could   be  foreseen   by  ordinary  prudence, 

counsel  for  the  plaintiff,  where  the  cases  are  there   the   wrong  consists   in   ministering    to 

well  collected.    It  was  an  action  of  trespass  on  that  pui-pose,  and  the  natural  consequences  of 

the  case,  in  which  the  ])]aintiff  sought  to  re-  that  purpose  are  the  legal  consequences  of  the 

cover  damages  for  that  the  defendant,  being  a  injurious  act.     The  drinking  and  intoxication 

shopkeeper,  in  violation  of  the  statute  on  the  of  the  slave  were  the   natural  and   probable 

subject,  and  to  the  wrong  of  the  plaintiff,  sold  consequences  of  selling  licpior  to  him.     Thfe 

and  delivered  ardent  spirits  to  his  slave,  by  lying  out  all  night  was  the  immediate  effect 

means  whereof  the  said  slave  became  intoxi-  of  the  intoxication  ;    and  the  two   produced 

cated,  lay  out  all  night,  and  died.     The  plain-  death.     Thus,  without   any  unconnected   in- 

'  tiff  claimed  only  compensation  for  bis  actual  fluence  to  be  perceived,  the  death  has   come 

loss ;  and  the  jury  were  instructed  to  regard  from  the  intoxication,  which  the  defendant's 

the  defendant  as  one  who,  with  no  particular  act  occasioned.      The  proximity  in  order  of 

1  In  a  successful  suit  for  freedom,  a  negro  is  entitled  to  recover  damages  in  the  nature  of 
hire,  for  the  period  of  the  restraint.     Moore's  Adm'r  v.  Minerva,  17  Tex.  20. 


CH.    III.] 


CONSEQUENTIAL   DAMAGES. 


97 


^ 


Wrong-uoer  cannot  Apportion  Wrong.  —  So  again,  ^vliere  the 
defendant  undertook  to  cany  a  quantity  of  the  plaintiff's  lime 
in  his  barge  from  Medway  to  London,  and  in  going  to 
London,  deviated   from  the  usual   course,   and   during  the  [89] 
deviation,  a  tempest  wet  the  lime,  whereby  it  set  fire  to  the 
barge,  and  the  whole  was  destroyed  ;  it  was  held  that  the  cause 
of  the  plaintiff's  loss,  to  wit,  the  deviation  from  the  usual  course, 
was  sufficiently  proximate   to  entitle  the  pLaintiff  to    recover, 
althouii-h  the  immediate  cause  of  the  loss  was  the  wetting  of  the 
lime  by  the  tempest.     Li  that  case,  the   wrongful  act  was  the 
deviation  from  the  usual  course,  and  the  injurious  consequence 
was  the  loss  of  the  lime,  by  first  getting  wet  in  the  tempest,  and 
secondly,  from  its  natural  quality,  setting  fire  to  the  barge  ;  and 
it  was  held  not  to  be  too  remote,  although  it  was  contended  that 
there  was  no  natural  connection  between  the  wrongful  act,  to 
wit,  the  deviation,  and  the  loss  of  the  lime,  as  the  same  accident 
might  have  happened  in  the  usual  course  ;  arid  Tindal,  C.  J.,  said. 
"  No  wrong  doer  can  be  allowed  to  apportion  or  qualify  his  own 
wrong ;  as  a  loss  has  actually  happened  whilst  his  wrongful  act 
was  in  operation  and   force,  and   which  is  attributable   to  his 


events,  and  intimacy  of  relation  as  cause  and 
eft'ect  between  the  injurious  act  and  tiie  dam- 
age, are  sufficiently  great  to  free  the  verdict 
from  the  objection  that  the  damages  were  too 
remote. 

In  Wright  v.  Gray,  2  Bay  Rep.  464,  Gray, 
being  concerned  in  a  horse-race,  had,  without 
Wright's  permission,  persuaded  his  negro  boy 
to  ride  his  horse,  which,  in  the  race,  threw 
the  boy  against  a  tree  and  killed  him.  The 
jury  having  found  a  verdict  for  the  plaintiff 
for  the  value  of  the  boy,  a  motion  was  made 
for  a  new  trial,  which  the  judges  unanimously 
refused,  upon  the  ground,  as  set  forth  in  the 
report,  "  that  a  man  who  officiously  presumes 
to  interfere  with,  or  make  use  of  the  property 
of  another,  without  his  permission,  is  liable 
for  all  the  consequences  of  such  interference, 
whether  he  intended  any  injury  to  the  owner 
or  not." 

In  McDaniel  v.  Emanuel,  2  Rich.  Rep.  455  ; 
the  plaintiff's  negro.  Jack,  had  been  employed 
by  the  defendant's  agent  on  his  boat,  without 
the  consent  of  his  owner,  according  to  the 
weight  of  the  evidence,  and  fell  overboard  and 
was  drowned ;  though  there  was  some  evi- 
dence to  show  that  Jack  was  employed  with 
the  consent  of  the  owner ;  and  there  was  also 
some  evidence  to  show  that  Jack  was  drowned 
by  the  negligence  of  the  defendant's  agent, 
the  captain  of  the  boat.  His  Honor,  Judge 
Butler,  who  tried  the  case,  states,  in  his  re- 
port, as  his  instruction  to  the  jury, — "  Tak- 
ing this  view  of  the  fact  (that  is,  that  Jack 
was  employed  without  the  consent  of  his 
owner),  I  was  of  opinion  that  the  company 
was  liable  for  the  loss  of  Jack,  even  if  it  should 


appear  that  his  death  resulted  from  one  of  the 
ortlinary  perils  incident  to  the  navigation  of 
the  boat,  and  without  any  actual  fault  on  the 
part  of  the  captain  at  the  time  the  catastrophe 
occurred,  ui)on  the  ground  that  Jack  had  l)een 
used,  by  the  agent  of  tlic  company,  in  a  way 
different  from  the  understanding  of  Water- 
man, and  in  opposition  to  the  instructions  of 
his  master"  (that  is,  without  the  consent  of 
his  master). 

In  Duncan  v.  The  S.  C.  R.  R.  Co.  2  Rich. 
Rep.  61.3,  the  })laintiff's  negro,  Wesley,  was 
carried  on  the  railroad  car  without  the  con- 
sent of  his  owner,  and  in  jumping  off  was 
killed.  His  Honor,  Judge  O'Neall,  in  deliver- 
ing the  opinion  of  the  court,  says,  "In  such  a 
case  (that  is,  carrying  the  slave  on  the  railroad 
car  without  the  consent  of  his  owner),  it  is  in 
vain  to  say  that  the  slave  was  a  moral  agent, 
capable  of  wrong  as  well  as  of  right  action, 
and  that  he  killetl  himself  by  jumjjing  otf 
when  he  ought  not."  And  he  referred,  with 
approbation,  to  Strawbridge  v.  Turner,  9  La. 
Rep.  213,  where  the  captain  of  a  steauilioat 
took  into  service  the  slave  of  the  plaintiff,  and 
without  his  consent,  and  the  slave  having  been 
drowned  by  jumping  or  falling  overboard,  the 
defendant  was  held  liable,  upon  the  grountl  of 
the  illegal  employment.  So,  if  a  slave  should, 
without  his  owner's  permission,  get  on  the 
railroad  car  at  Columlna,  to  go  down  to  his 
plantation,  a  dozen  miles  below,  and  sh(juld  be 
killed  in  jumping  off  opposite  the  plantation, 
the  company  would  be  held  liai)le,  upon  the 
same  ground,  that  they  had  illegally  interfered 
with  the  slave  without  the  consent  of  the 
owner. 


98  CONSEQUENTIAL   DAMAGES.  [CH.    III. 

wrongful  act,  he  cannot  set  np  as  an  answer  to  the  action,  the 
bare  possibility  of  a  loss  if  his  wrongful  act  had  never  been 
done."  * 

So  in  Massachusetts,  it  was  held,  in  an  action  for  trespass  for 
dio-crincr  into  a  river  bank  near  a  dam,  that  the  plaintiff  mi<ii;ht 
recover  for  the  injury  consequential  on  the  digging,  which  con- 
sisted of  the  damage  done  by  a  flood  that  occurred  three  weeks 
after,  and  swept  away  several  acres  of  land,  and  a  cider-mill ; 
the  court  saying  that  tlie  plaintiff  was  entitled  to  recover  in  this 
action  all  the  damage  of  which  the  injurious  act  was  the  efficient 
cause,  and  that  it  was  not  necessary  to  put  him  to  an  action 
on  the  case  for  the  consequential  injury :  no  malice  was  sug- 
gested.! ^ 

Fraud.  —  In  New  York,  in  case  for  fraud,  where  an  agent, 
authorized  to  sell  a  flock  of  sheep,  sold  a  portion  of  them  with 
knowledge  that  they  were  diseased,  and  the  diseased  sheep 
were  mixed  with  another  flock,  it  was  held  that  the  claim  of  the 
purchaser  against  the  principal  -was  not  limited  to  the  loss  of 
the    sheep    purchased,  but    extended   to  that  of  the  others  to 

which  the  distemper  was  communicated ;  and  the  court 
[90]  said,  *'  This  damage  was  the   natural  consequence  of  the 

fraudulent  act  of  the  defendant's  agent."  t     This  case  we 

have  seen  similarly  decided  by  Pothier.^ 
[91]       Where  the  defendant  had  sold  to  the  plaintiff's  father  a 

gun,  for  the  use  of  himself  and  his  son,  falsely  and  fraudu- 
lently representing  the  gun  to  be  made  by  a  particular  maker, 
and  to  be  well  made,  when,  in  truth,  it  was  not  made  by  the 
gunsmith  in  question,  nor  well  made ;  and  the  gun  exploded  in 
the  hands  of  the  plaintiff,  and  maimed  him,  it  was  held  that  the 
damage  was  not  too  remote.  "  We  think,"  said  Parke,  B.,  "  that 
as  there  is  fraud  and  damage,  and  the  result  of  that  fraud  not 
from  an  act  remote  and  consequential,  but  one  contemplated  by 

*  Davis  V.   Garrett,  6  Bing.  Rep.  716   (19  to  have  been,  that  the  action  should  have  been 

Eug.  C.  L.  Rep.  212).  case,  and  not  trespass. 

t  Dickinson  v.  Boyle,   17   Pick.   78.     The  J  Jefifrey  v.  Bigelow,  13  Wend.  518. 
only  objection  taken  by  the  defendant  seems 

1  So  in  Maryland,  damages  from  the  non-thriving  of  cattle  in  consequence  of  the  construc- 
tion of  a  railroad  through  their  pasture,  v.'ere  held  not  too  remote.  Bait,  and  Ohio  R.  R.  Co. 
V.  Thompson,  10  Md.  76. 

So  where  a  sea-wall,  built  by  the  defendant,  had  not  been  constructed  according  to  his 
agreement,  and  he  had  promised  the  plaintiff  to  rebuild  it,  but  foiled  to  do  so,  and  in  reliance 
on  such  promise,  the  plaintiff  himself  delayed  rebuilding  it,  the  loss  of  the  use  of  the  wharf 
during  the  period  of  delay  thus  caused,  was  held  the  direct  and  immediate  consequence  of  the 
defendant's  failure,  for  which  he  was  liable.     Willey  v.  Fredericks,  10  Gray,  357. 

^  So  Mullett  V.  Mason,  1  L.  R.  (C.  P.)  559  ;  Knowles  v.  Nunns,  14  L.  T.  (N.  S.)  Q.  B. 
592,  cited  post,  296,  note ;  Faris  v.  Lewis,  2  B.  Munroe,  375  ;  Bradley  v.  Rea,  14  Allen,  20. 


CH.    m.]  CONSEQUENTIAL  DAMAGES.  99 

the  defendant  at  the  time  as  one  of  its  results,  the  party  guilty 
of  the  fraud  is  responsible  to  the  party  injured."  * 

So  where  the  delendant,  being  about  to  sell  a  public-house, 
falsely  represented  to  a  third  party,  who  had  agreed  to  purchase 
it,  that  the  receipts  were  a  certain  sum  per  month,  these  repre- 
sentations being,  to  the  knowledge  of  the  defendant,  communi- 
cated to  the  plaintiff,  who  therefore  became  the  purchaser ;  held 
that  an  action  lay  against  the  defendant  at  his  suit.f 

If  the  defendant  state  positively  to  the  commander  of  a  press- 
gang,  that  the   plaintiff  is  liable  to  the  impress   service, 
where  in  truth  he  is  not  so,  and  the  plaintiff  in  conse-  [92] 
quence  of  his  information  is  impressed,  the  defendant  is 
liable  to  an  action  of  trespass  at  the  plaintiff's  suit,  the  impress- 
ment being  the  consequence  of  the  false  statement,  t 

Evidence  for  Jury. — We  must  take  notice  that  there  are 
cases  where  evidence  of  loss  somewhat  remote  has  been  received, 
not  on  the  ground  of  its  being  a  measure  of  damages,  but  as  an 
ingredient  in  the  cause,  proper  to  go  with  the  other  facts  to  tlie 
jury.§  So  in  a  case  of  libel  against  the  editor  of  the  "  Times,"  for 
the  insertion  in  that  paper  of  a  statement  that  the  vessel,  an 
East  Indiaman,  of  which  the  plaintiff  was  owner  and  master, 
was  not  seaworthy,  and  that  Jews  had  bought  her  to  take  out 
convicts.  On  the  trial,  the  plaintiff  was  allowed  to  prove  the 
average  profits  to  the  captain  on  an  East  India  voyage  ;  and 
the  jury  were  instructed  that,  with  a  view  to  estimate  the  dam- 
age, they  might  look  to  the  nature  of  his  business,  and  his  gen- 
eral rate  of  profit ;  and  on  a  motion  for  a  new  trial,  this  was 
held  right.  But  the  evidence  of  profits  was  not  regarded 
properly  as  a  measure  of  damage.  Maule  J.,  said,  "  The  evidence 
was  admitted  only  that  the  jury  might  know  what  sort  of  busi- 
ness the  plaintiff  carried  on ;  "  and  Coltman,  J.,  said,  "  With  re- 
spect to  the  damages,  the  jury  must  have  some  mode  of  esti- 

*  Langridge  i-.  Levy,  2  Mees.  &  Wels.  519  ;  on  the  death  of  the  child,  these  damages  being 

aflBrmed  in  the  Exchequer  Chamber,  4  Mees.  specially  laid  in  the  declaration,  and  clearly 

&  Wels.  337.  proved  to  have  been  the  consequence  of  the 

t  Pilmore  v.  Hood,  5  Bing.  N.  C.  97.     See  act  complained  of.    Ford  z'.  Monroe,  20  Wend, 

also  Taylor  v.  Ashton,  11  M.  &  Wels.  401.  210.     But  as  to  the  damages  for  the  death  of 

X  Flewster  v.  Eoyle,  1  Camp.  187.     In  New  the  child,  see  the  law  of  this  case  denied  in 

York,  in  an  action  on  the  case  for  negligently  Carey  and  wife  v.  Berkshire  R.  R.  Co.  1  Cush- 

running  over  and  killing  the  plaintiff's  son,  ing,  475,  and  Skinner  v.  Housatonic  R.  R. 

the  plaintiff  was  allowed  to  recover  for  the  de-  Co.  Ibid.i 

privation  of  the  society  of  the  wife,  and  the  §  Ingram  v.  Lawson,  6  Bing.  N.  C.  212. 
expense  resulting  from  her  illness  consequent 

1  This  case  was  disapproved  also  in  Green  v.  Hudson  R.  R.  Co.  28  Barb.  9,  and  in  AUsop  v. 
Allsop,  2  L.  T.  (N.  S.)  Exch.  290 ;  and  being  in  conflict  with  the  subsequent  course  of 
decision  in  New  York,  can  no  longer  be  regarded  as  law. 


100  CONSEQUENTIAL   DAMAGES.  [CH.    III. 

mating  them  ;  and  they  would  not  be  in  a  condition  to  do  so 
unless  they  knew  something  of  the  plaintiff's  business,  and  the 
general  return  from  his  voyages."  The  evidence  was  admitted, 
not  as  a  measure  of  damages,  but  to  serve  as  a  guide  for  the 
exercise  of  that  discretion  which,  to  a  certain  extent,  is  always 

vested  in  the  jury. 
[93]  So  in  Alabama,  in  an  action  for  malicious  prosecution,  the 
plaintiffs  claimed  for  loss  of  profits,  and  the  court  admit- 
ted evidence  on  that  point,  saying,  however,  "  We  would  by  no 
means  say  that  the  jury  should  make  the  supposed  profits,  which 
the  plaintifis  had  lost,  the  measure  of  damages.  All  we  design  to 
affirm  is,  that  proof  tending  to  establish  such  loss  as  a  conse- 
quence of  the  suit,  may  properly  go  before  the  jury  to  serve  as 
some  guide  for  them  in  the  exercise  of  their  discretion  in  esti- 
mating the  loss."  *  It  will  be  noticed  that  these  cases  are  in 
tort.     And  here  the  evidence  appears  to  be  often  necessary. 

Where  an  action  was  brought  for  breach  of  an  agreement  to 
form  a  partnership,  and  it  was  proved  that  the  plaintiff"  had 
given  up  an  East  India  voyage,  as  was  well  known  to  the  de- 
fendant, he  was  allowed  to  show  the  value  of  the  voyage,  not  as 
special  damage  but  as  an  ingredient  for  estimating  the  value 
which  each  of  the  parties  set  on  the  contract  in  dispute.! 

There  is  great  difficult}^,  however,  in  princijole,  in  admitting 
evidence  of  this  kind  in  cases  of  contract.  It  is  a  practical 
abandonment  of  those  safe  rules  which  go  to  exclude  remote 
damage.  If  evidence  is  admitted,  and  a  fact  undisputed,  the 
jury  should  be  controlled  by  it.^ 

*  Donnell  v.  Jones,  17  Ala.  689.  t  M'Neill  v.  Eeid,  9  Bing.  68. 

1  In  an  action  for  the  breach  of  a  partnership  contract,  part  of  the  consideration  for  which 
was  the  giving  up  a  claim  by  one  of  the  parties  against  tlie  other  for  breaking  a  previous  con- 
tract, the  prior  agreement  cannot  be  considered.  Addams  v.  Tutton,  .39  Penn.  447.  And  in 
the  case  of  Skinner  ^.Tinker,  34  Barb.  333,  where  the  agreement  for  the  partnership  provided 
no  limit  to  its  duration,  and  it  was  tliercfore  dissoluble  by  either  partner  at  any  time,  the  New 
York  Supreme  Court  held,  in  a  similar  action,  that  the  phiintitf  was  not  entitled  to  prospective 
damages.  He  could  recover  such  only  as  had  been  sustained  up  to  the  time  of  the  defendant's 
notice  of  his  determination  not  to  form  a  partnership. 

But  against  one  who  either  breaks  his  agreement  to  form  the  partnership,  or  wrongfully 
dissolves  an  existing  one,  the  weight  of  authority  sanctions  the  allowance  by  the  jury  of  com- 
pensation for  the  loss  of  the  prosjjcctive  profits  of  a  partnership,  in  the  estimation  of  which 
the  past  profits  of  the  concern  are  to  be  considered.  In  the  case  of  Gale  v.  Leckie,  at 
Nisi  Prius  (2  Stark.  107),  Lord  Ellenborough  remarked  that  he  had  known  several  actions 
brought  against  a  defendant  for  not  contributing  his  labor  towards  the  attainment  of  profit  to 
be  subse(piently  divided  between  the  parties  ;  and  in  that  case,  which  was  an  action  by  a  book- 
selling firm  to  recover  damages  sustained  by  the  defendant's  refusal  to  proceed  in  the  pul)lica- 
tion  of  a  literary  work  which  he  had  undertaken,  and  wliich  was  partly  printed  by  the  plain- 
tiffs, the  jury,  under  his  lordship's  sanction,  made  an  allowance  for  the  profits  of  the  under- 
taking in  addition  to  the  actual  expense  of  paper  and  printing.  His  lordshij),  after  observing 
that  the  contract  had  been  entered  into  on  the  supposition  that  it  would  lie  ])rofital)le,  said, 
"  The  sum  of  £90  has  been  stated  by  the  witnesses  as  the  amount  of  profit  wliicli  would  prob- 
ably have  been  derived  from  the  first  edition,  and  it  is  doubtful  whether  it  would  have  reached 
the  second.     The  publication  was  to  have  been  at  the  entire  risk  of  the  plaintilFs  ;  they  might 


en.    III.]  CONSEQUENTIAL   DAMAGES.  101 

Avoidable  Consequences  not  Allowed.  —  The  same  principle 
which  refuses  to  take  into  consideration  any  but  the  direct  con- 
sequences of  the  illegal  act,  is  applied  to  limit  the  damages 
where  the  plaintifl",  by  using  reasonable  precautions,  could  have 
reduced  them. 

"  If,"  said  Lord  Chief  Justice  Abbott,  at  Nisi  Prius  "  you 
charge  anybody  with  a  loss  arising  from  mistake,  you  should 
show  that  no  due  diligence  could  have  been  used  by  you  which 
might  have  prevented  that  loss."*  "In  an  action  for  an  injury 
occasioned  by  the  negligence  of  another,"  says  Mr.  Starkie,  "it 
is  a  good  defense  to  show  that  the  injury  so  far  arose  from  the 
negligence  of  the  plaintiff'  himself,  that  he  might  by  ordinary 
care  and  caution  have  avoided  the  injury."  f 

So  in  case,  though  the  party  charged  be  in  fault;  yet,  if  the 
proximate  and  immediate  cause  of  the  accident  be  the  un- 
skillfulness  of  the  plaintiff^  there  is  no  relief  Thus,  where  [94] 
the  defendant  illegally  ])laced  a  heap  of  lime  rubbish  in 
the  highway,  the  dust  of  which  frightened  the  plaintiff's  horse  ; 
the  animal  ran,  and  in  running  approached  a  wagon.  The 
plaintiff,  who  was  driving,  endeavored  to  divert  him  from  the 
direction  of  the  wagon,  but  did  it  so  unskillfully  that  he  ran 

*  Ilordem  v.  Dalton,  1  Car.  &  Payue,  181.  t  Starkie  on  Evidence,  voL  ii.  i>.   741,  tit. 

Nuisance. 

have  incurred  a  loss,  but  the  defendant  could  not."  The  jury  found  a  verdict  for  £50  more 
than  the  expenses. 

In  the  case  of  Bagley  v.  Smith,  10  N.  Y.  489,  it  was  insisted  by  the  defendant's  counsel  that 
the  making  of  either  the  prospective  or  the  past  profits  of  a  partnership  the  basis  of  a  rule  of 
damages  was  contrary  to  principle ;  that  the  inquiry  into  past  profits  involved  the  taking 
of  an  account  which  was  impracticable  in  a  trial  at  law,  and  that  there  was  no  basis  for 
the  jury  to  measure  the  fluctuations  of  trade,  the  danger  of  losses,  and  the  effects  of  com- 
petition, which  were  all  involved  in  a  calculation  of  future  profits.  Moreover,  as  the  profit- 
able prosecution  of  the  business  of  the  firm  dc])ended  on  the  mutual  confidence  and  harmo- 
nious cooperation  of  its  members,  its  dissolution  under  circumstances  which  precluded  these 
conditions,  could  not  subject  the  withdrawing  partner  to  damages  on  the  basis  of  prospective 
profits. 

But  the  court  held  that  no  rule  of  law  required  that  the  breach  of  a  covenant  contained  in 
partnership  articles  should  be  compensated  by  nominal  damages  only  ;  that  as  the  object  of 
commercial  partnerships  was  profit,  the  most  direct  and  legitimate  injury  which  could  be  oc- 
casioned by  an  unauthorized  dissolution  of  a  firm  was  the  loss  of  profits  ;  that  although  there 
was  great  inherent  difficulty  in  accurately  estimating  future  gains,  this  difficulty  would  not  be 
lessened  by  shutting  out  the  light  from  the  past,  and  that  as  no  one  out  of  a  court  of  justice 
could  undertake  to  judge  of  the  future  profits  of  a  business  without  informing  himself,  if 
practicable,  as  to  those  in  the  past,  there  appeared  to  be  no  reason  why  a  legal  tribunal  should 
do  so.  The  court  also  refused  to  limit  the  plaintifi's  claim  for  jDrofits  to  the  period  between 
the  dissolution  and  his  subsequent  entry  into  business. 

The  practice,  established  in  New  York  by  the  above  case  of  Bagley  v.  Smith,  of  admitting 
evidence  of  past  profits,  not  as  in  themselves  a  safe  measure  of  future  profits,  but  as  very 
pertinent  to  the  question  what  the  future  profits  would  probably  have  been  had  not  the  busi- 
ness been  interrupted,  and  as  a  material  aid  to  the  jury  in  the  solution  of  this  (juestion  has 
been  elsewhere  sanctioned,  and  may  be  taken,  we  think,  to  the  extent  here  stated,  as  the  general 
rule.  Allison  u.  Chandler,  11  Mich.  542;  Chandler  w.  Allison,  10  Mich.  4G0.  And  the  rule 
as  thus  qualified  has  been  extended  so  as  to  embrace  evidence  of  what  others  have  made  in  the 
same  business  at  the  same  place,  and  within  the  same  period.  Donnery  v.  Bisa,  6  La.  Ann. 
365. 


102  CONSEQUENTIAL   DAMAGES.  [CH.    HI. 

over  another  heap  of  rubbish,  which  upset  the  plaintiff's 
vehicle,  and  did  other  damage.  This  was  held  by  the  English 
Common  Pleas  too  remote ;  it  being  considered  that  the  proxi- 
mate and  immediate  cause  of  the  accident  was  the  unskillfulness 
of  the  diiver.* 

So  in  Maine,  in  an  action  of  assumpsit  for  a  quantity  of  lime- 
stone, the  court  said,  — 

"  In  general  the  delinquent  party  is  holden  to  make  good  the  loss  occasioned 
by  his  delinquency.  But  his  liability  is  limited  to  the  direct  damages  which,  ac- 
cording to  the  nature  of  the  subject,  may  be  contemplated  or  presumed  to  result 
from  his  failure.  Eemote  or  speculative  damages,  although  susceptible  of  proof 
and  deducible  from  the  non-performance,  are  not  allowed ;  and  if  the  party  in- 
jured has  it  in  his  power  to  take  measures  by  which  his  loss  may  be  less  aggra- 
vated, this  will  be  expected  of  him.  If  a  party  entitled  to  the  benefit  of  a  con- 
tract can  jjrotect  himself  from  a  loss  arising  from  a  breach,  at  a  trifling  expense 
or  with  reasonable  exertions,  —  he  fails  in  social  duty  if  he  omits  to  do  so.  For 
example,  a  party  contracts  for  a  quantity  of  bricks  to  build  a  house,  to  be  de- 
livered at  a  given  time,  and  engages  masons  and  carpenters  to  go  on  with  the 
work.  The  bricks  are  not  delivered.  If  other  bricks,  of  an  equal  quality  and 
for  the  stipulated  price,  could  be  at  once  purchased  on  the  spot,  it  would  be  un- 
reasonable, by  neglecting  to  make  the  purchase,  to  claim  and  receive  of  the  de- 
linquent party  damages  for  the  workmen,  and  the  amount  of  rent  which  might  be 
obtained  for  the  house  if  it  had  been  built."  f 

So  in  trespass  in  Massachusetts,  it  appearing  that  the  defendant 
had  broken  down  the  plaintiff's  fence  in  November,  but  that  the 
plaintiff  did  not  repair  the  breach  till  May,  in  consequence  of 
which  cattle  got  in  and  destroyed  the  crop  of  the  next  year, 
and  the  claim  being  for  the  loss  of  the  subsequent  year's  crop, 
as  well  as  the  expense  of  repairing  the  fence,  the  Supreme 
Court  said,t  — 

r951  "Iii  assessing  damages,  the  direct  and  immediate  consequences  of  the 
injurious  act  are  to  be  regarded,  and  not  remote,  speculative,  and  contingent 
consequences,  which  the  i>arty  injured  might  easily  have  avoided  by  his  own  act. 
Suppose  a  man  should  enter  his  neighbor's  field  unlawfully,  and  leave  the  gate 
open ;  if,  before  the  owner  knows  it,  cattle  enter  and  destroy  the  crop,  the  tres- 
passer is  responsible.  But  if  the  owner  sees  the  gate  open,  and  passes  it  fre- 
quently, and  willfully  and  obstinately,  or  through  gross  negligence,  leaves  it  open 
all  summer,  and  cattle  get  in,  it  is  his  own  folly.  So,  if  one  throw  a  stone  and 
break  a  window,  the  cost  of  repairing  the  window  is  the  ordinary  measure  of 
damage.     But  if  the  owner  suffers   the  window  to   remain   without  repairing  a 

*  Flower  v.  Adam,  2  Taunt.  314;  S.  P.  51.  The  same  language  is  held  in  Iowa, 
Buttcrfield  v.  Forester,  11  East,  60.  Davis  v.  Fish,  1  Iowa  (Greene),  407. 

t  Miller  v.  Mariner's  Church,  7  Greenleaf,        |  Loker  v.  Damon,  17  Pick.  284,  per  Shaw, 

C.J. 


CH.    III.]  CONSEQUENTIAL    DAMAGES.  103 

great  length  of  time  after  notice  of  the  fact,  and  his  faraiture,  or  pictures,  or 
other  vahiable  articles,  sustain  damage,  or  the  rain  beats  in  and  rots  the  window, 
this  damage  would  be  too  remote.  We  think  the  jury  were  rightly  instructed, 
that  as  the  trespass  consisted  in  removing  a  few  rods  of  fence,  the  proper  meas- 
ure of  damage  was  the  cost  of  repairing  it,  and  not  the  loss  of  a  subsequent 
year's  crop,  arising  from  the  want  of  such  fence."  * 

We  shall  hereafter  see  that  this  principle  has  been  frequently 
applied  to  nuisances,  to  cases  of  collision,  and  in  many  other 
instances.  But  we  shall  find  that  the  lano;ua2:e  here  used  is  in- 
tended  to  be  subject  to  the  qualification  that  the  negligence,  or 
other  misconduct  of  the  plaintiff,  has  actually  increased  the  dif- 
ficulty. The  mere  fact  of  the  conduct  of  the  plaintiff  being 
irregular,  is  of  no  consequence,  unless  his  misconduct  has  tended 
to  aggravate  the  injury,! 

So  where  the  defendant's  servant  had  left  his  horse  and  cart 
in  the  public  street,  where  children  might  be  playing.  The 
plaintif]^  who  was  a  child  between  six  and  seven  years  of  age, 
and  several  other  children,  played  about  the  cart,  and  the  plain- 
tiff got  into  it,  and  another  boy  led  the  horse  on,  and  as  the 
plaintiff"  was  getting  out  he  fell,  and  the  cart-wheel  ran  over  his 
leg,  and  broke  it.  It  was  contended  that  the  mischief  was  not 
produced  by  the  unlawful  act  of  the  servant  alone,  but  by  that 
combined  with  two  other  active  causes,  namely,  the  advance  of 
the  horse  caused  by  the  other  boy,  and  the  plaintiff's  improper 
conduct  and  trespass  in  mounting  the  cart.  Lord  Denman,  C. 
J.,  said,  "  Certainly,  the  child  was  a  cooperating  cause  of  his 
own  misfortune,  by  doing  an  unlawful  act ;  and  the  question 
arises,  whether  thaffact  alone  must  deprive  him  of  his  remedy." 
.  .  .  .  "  The  question  remains :  Can  the  plaintiff  then,  consis- 
tently with  the  authorities,  maintain  his  action,  having  been  at 
least  equally  in  fault  ?  The  answer  is,  that  supposing  that  fact 
ascertained  by  the  jury,  but  to  this  extent,  that  he  merely 
indulged  the  natural  instinct  of  a  child,  in  amusing  himself 
with  the  empty  cart  and  deserted  horse,  then  we  think  that  the 
defendant  cannot  be  permitted  to  avail  himself  of  that  fact. 
The  most  blamable  carelessness  of  his  servant  having  tempted 
the  child,  he  ought  not  to  reproach  the  child  with  yielding  to 
the  temptation.  He  has  been  the  real  and  only  cause  of  the 
mishap."     And  the  verdict  for  the  plaintiff"  was  sustained. t 

Counsel  Fees.  —  To  the  same  general  principle  which  we  are 

*  And  see  Thompson  v.  Shattuck,  2  Met-         J  Lynch  v.  Niirdin,  1   Queen's  B.  Rep.  29 
calf,  615.  (41  Eng.  C.  L.  Rep.  422). 

t  Vide  post,  ch.  xviii.  of  torts  generally. 


104  CONSEQUENTIAL   DAMAGES.  [CH.   HI. 

now  considering,  the  subject  of  counsel  fees  appears  properly 
referable.  The  law  awai'ds  to  the  successful  party  his  taxable 
costs,  but  the  fees  which  he  pays  to  counsel  are  not  taken  into 
consideration.-^ 

So  in  an  action  of  assumpsit,*  the  Supreme  Court  of  Massa- 
chusetts said,  that  "  the  expenditure  for  counsel  fees  is  an  item 
ordinarily  to  be  borne  by  the  suitor,  except  so  far  as  it  may  be 
remunerated  by  the  taxable  costs  for  the  travel  and  attendance 
of  the  party,  and  the  allowance  of  an  attorney's  fee."  "  In  ac- 
tions of  debt,  covenant,  and  assumpsit,  the  plaintiff  can  recover 
but  legal  costs  as  compensation  for  his  expenditure  in  the  suit, 
and  as  punishment  to  the  defendant  for  his  unjust  detention  of 
the  debt."  f 

We  have  already  had  occasion  to  notice  that  legal  relief 
[96]  is  at  best  but  partial.^  Under  the  Roman  law  the  success- 
fid  party  was  not  restricted  to  a  suit  for  malicious  prosecu- 
tion, and  the  party  justly  chargeable  with  making  a  totally  un- 
grounded claim  or  defense,  was  punished  by  a  pecuniary  mulct. 
And  this,  at  one  time,  seems  to  have  been  adopted  into  the 
jurisprudence  of  modern  Europe.  Francis  the  First,  by  his 
ordinance  of  1539,  Art.  88,  authorized  the  judge  to  inflict  dam- 
ages proportioned  to  the  "  temerity "  of  the  losing  party.  § 
And  so,  too,  in  England,  originally  it  seems  that  the  plaintiff,  in 
all  cases  of  unsuccessful  litigation,  might  be  amerced  fro  falso 
clamore,  and  the  amerciament  [a  merci,  Fr.]  was  affeered  \_affiei\ 
Fr.],  or  assessed,  by  the  court  or  its  officers.  This  power,  how- 
ever, no  longer  exists,  and  in  cases  of  contract  no  redress  is 
given  beyond  the  taxable  costs.  Even  in  cases  the  most  frivo- 
lous and  vexatious,  in  no  case  is  any  independent  redress  given, 
i.  e.,  by  a  recriminatory  action,  unless  the  first  suit  or  proceed- 
ing be  inaHcious.  Malice  and  want  of  probable  cause  must 
concur.!!'"^  This  principle  is  rigorously  applied  to  counsel  fees 
in  all  cases  of  contract,  and,  without  discrimination,  to  both  par- 
ties to  the  litigation.^     We  are  now  speaking  of  counsel  fees 

*  Guild  V.  Guild,  2  Met.  229.  ||   Savil  v.  Eoberts,  1   Salk.  14  ;  Turton  v. 

t  Stimijson  v.  The  Railroads,  1  Wallace,  Jr.  Iloinior,   1  Bos.   &  Pull.  205  ;    Vaiuluzor  v. 

164,  per  Grier,  J.  LiiKlerman,  10  J.  R.  106 ;  Donnell  v.  Jones, 

t  Ante,  33-37.  13  Ala.  (N.  S.)  490,  501. 

§  Merliu ;   Repertoire,   in  voc.  Dommages- 
Interets. 

1  Haverstick  v.  The  Erie  Gas  Co.  29  Pcnn.  254.  See,  as  to  the  allowance  of  counsel  fees 
as  damages,  post,  179. 

2  The  South  Royalton  Bank  v.  The  Suffolk  Bank,  27  Vt.  505;  Gould  v.  Gardner,  11  La. 
Ann.  289  ;  Lisk  v.  Mathis,  Ibid.  418;  Kearney  v.  Holmes,  6  Ibid.  373.  And  see  Forbes  v. 
Geddes,  IV)id.  402. 

3  Newell  V.  Sanford,  13  Iowa,  463.     Where  the  plaintiff  had  delivered  to  the  defendant  a 


CII.    in.]  CONSEQUENTIAL   DAMAGES.  105 

in  tlie  principal  suit,  for,  as  we  shall  see  when  we  come  to  inves- 
tifj^ate  the  subject  of  the  covenant  of  seizin,  that  of  principal 
and  surety,  and  some  others,  counsel  fees  in  former  suits  are 
frequently  allowed*  So  in  Connecticut,  in  an  action  of  assault 
and  battery,  where,  in  consequence  of  the  death  of  a  juror,  a 
second  trial  became  necessary,  it  was  held  that  the  jury, 
in  estimatino;  the  damao;es,  mio'ht  take  into  consideration  the 
expenses  of  the  first  trial.f  But  in  suits  brou<^ht  on  con- 
tracts, counsel  fees  in  those  particular  suits  have  never  been 
allowed. 

In  actions  of  tort,  different  opinions  have  been  pronounced. 
There  may  be,  and  often  are,  cases  nominally  in  tort,  where  no 
actual  wrong  in  the  moral  sense  of  the  term  is  complained 
of,  and  it  is  in  these  cases  that  the  question  properly  [97] 
arises  ;  for  where  the  act  complained  of  is  tainted  by 
fraud,  malice,  or  insult,  the  jury  which  has  power  to  punish  has 
necessarily  the  right  to  include  the  consideration  of  the  proba- 
ble counsel  fees  in  their  estimate  of  vindictive  or  exemplary 
damages.  Perhaps  this  distinction  has  not  been  sufficiently  kept 
in  mind. 

In  Massachusetts,  the  Supreme  Court  has  refused  to  allow 
counsel  fees  in  an  action  on  the  case  for  setting  a  fire  on  the 
defendant's  own  land,  whereby  the  plaintiff's  wood  was  con- 
sumed, holding-  that  it  was  immaterial  with  reference  to  the 
damages,  whether  the  accident  resulted  from  gross  negligence,  or 
merely  the  want  of  ordinary  caret  "  It  is  now  well  settled," 
said  the  court,  "  that  even  in  an  action  of  trespass  or  other 
action  sounding  in  damages,  the  counsel  fees  and  other  expenses 
of  prosecuting  the  suit,  not  included  in  the  taxed  costs,  cannot 
be  taken  into  consideration  in  assessing  damages."  And  the 
Supreme  Court  of  New  York  have  laid  down  the  same  rule  in 

*  Stiiats  V.  Ex'rs  of  Ten  Eyck,  3  Caines,  expenses  of  the  first  suit  would  be  a  frround 

111  ;    Kiuiisbuiy   v.    Smith,    13   N.    II.    122  ;  of  further   damage.     In   Rice  v.   Austin,   17 

Swett  r.  Patrick,  3  Fairf.  9  ;  Bcale  u.  Thoinp-  Mass.    197,   a  case  of  trespass,  but  without 

son,  3  B.  &  P.  407  ;  Pitkin  v.  Leavitt,  13  Vt.  aggravation,  the  court  were  divided  as  to  the 

379  ;  Allen  v.  Blunt,  2  Wood.  &  M.  121.  allowance  of  counsel  fees.      In  Leffingwell  v. 

t  Noyes  v.  Ward,  19  Conn.  250.  Elliot,  10  Pick.  204,  on  the  covenants  against 

J  Barnard  v.  Poor,  21  Pick.  378.     The  do-  incumbrances  and  warranty,  they  were   dis- 

cisions    on    this    subject    in    Massachusetts,  allowed,  and  finally,  in  Barnard  v.  Poor,  21 

curiously  illustrate  the  oscillations  of  the  judi-  Pick.  378,  they  were  rejected  in  an  action  of 

cial  pciHlulum.  In  Cole  i\  Fisher,  11  Mass.  trespass  for  gross  negligence.    It  is  very  plain, 

137,  where  trespass  was  brought,  it  was  said  that  whatever  may  be  the  merit  of  these  cases, 

that   whether    the   action    should   have   been  they  do  not  support  each  other ;  they  are  not 

trespass  or  case  was  immaterial,  because  the  in  pari  materia. 

quantity  of  stone,  on  the  false  and  fraudulent  representation  of  the  latter  that.it  was  ordered  by 
A,  and  "had  failed  in  action  against  A  for  the  price;  it  was  held  that  the  plaintifi'was  entitled 
to  recover  from  the  defendant,  not  only  the  value  of  the  stone,  but  also  the  costs  incurred  in 
the  former  action.    RandcU  v.  Trimen,  37  Eng.  L.  &  E.  275.     See  ante,  78,  note  2. 


106  CONSEQUENTIAL   DAMAGES.  [CH.    m. 

an  action  on  the  case  for  negligence,  against  a  railroad,  for  inju- 
ries to  the  person,  which  we  have  already  noticed.*  ^ 

But  in  an  action  on  the  case  brought  in  Connecticut,  these 
decisions  were  reviewed  ;  and  after  stating  the  rule  allowing 
vindictive  or  exemplary  damages,  the  court  proceeded  to  use 
this  sound  and  logical  language  :  — 

"The  argument  in  opposition  to  the  doctrine  of  the  charge  is  substantially 
founded  upon  the  assumed  principle,  that  the  defendant  cannot  be  subjected  to  a 
greater  sum  in  damages  than  the  plaintiff  has  actually  sustained.  But  every 
case  in  which  the  recovery  of  vindictive  damages  has  been  justified,  stands  op- 
posed to  this  argument.  And  we  cannot  comprehend  the  force  of  the  reasoning 
which  will  admit  the  right  of  a  plaintiff  to  recover  as  vindictive  damages, 
L98J  beyond  the  amount  of  injury  confessedly  incurred,  and  in  case  of  an  act 
and  injury  equally  wanton  and  willfully  committed  or  permitted,  will  deny 
to  him  a  right  to  recover  an  actual  indemnity  for  the  expense  to  which  the  de- 
fendant's misconduct  has  subjected  him.  In  the  cases  to  which  we  have  been  re- 
ferred in  other  States,  as  deciding  a  different  principle,  the  courts  seem  to  have 
assumed  that  the  taxable  costs  of  the  plaintiff  are  his  only  legitimate  compensation 
for  the  expense  incurred.  If  taxable  costs  are  presumed  to  be  equivalent  to  actual 
necessary  charges  as  a  matter  of  law,  every  client  knows  as  a  matter  of  fact  they 
are  not.     And  legal  fictions  should  never  be  permitted  to  work  injustice."  t  ^ 

*  Lincoln  v.  Saratoga  and  Schenectady  R.     t  Linsley  v.  Bushnell,  15  Conn.  225. 
R.  Co.  23  Wend.  425  ;  supra,  85. 

1  So  in  South  Carolina,  Welch  v.  The  Northeastern  R.  R.  Co.  12  S.  C.  (Rich.)  290.  And 
in  New  York  it  has  been  held  error  for  the  judge,  in  an  action  of  slander,  to  charge  the  jury  that 
in  awarding  the  damages  they  might  take  into  consideration  the  expenses  to  which  the  plaintiff 
had  been  put,  by  being  compelled  to  come  into  court  to  vindicate  her  character.  Hicks  v. 
Foster,  13  Barb.  (N.  Y.)  663. 

2  In  the  same  State  it  is  now  well  settled,  that  in  cases  where  there  is  malice  or  wantonness 
in  the  injury,  the  jury,  in  estimating  the  damages,  may  consider  the  expenses  of  the  litigation. 
Piatt  V.  Brown,  30  Conn.  336  ;  St.  Peter's  Church  v.  Beach,  26  Conn.  355  ;  Dibble  v.  Morris, 
26  Conn.  416  ;  Ives  v.  Carter,  24  Conn.  392  ;  Beecher  v.  Derby  Bridge  Co.  24  Conn.  491  ; 
also,  Linsley  v.  Bushnell,  15  Conn.  225  ;  Huntley  v.  Bacon,  15  Conn.  71,  cited  post,  460.  So 
in  Ohio,  the  Supreme  Court  of  that  State  use  the  following  language  :  "  The  authorities  are 
not  uniform  ;  but  the  better  opinion  now  seems  to  be  that  in  actions  ex  contractu  and  in  cases 
nominally  in  tort,  but  where  no  wrong  in  the  moral  sense  is  complained  of,  the  fees  of  counsel 
ought  not  to  be  included ;  but  in  cases  where  the  act  complained  of  is  tainted  by  fraud  or 
involves  an  ingredient  of  malice  or  insult,  the  jury  which  has  power  to  punish  has  necessarily 
the  right  to  include  the  consideration  of  a  proper  and  reasonable  counsel  fee  in  their  estimate 
of  the  damage."  Roberts  v.  Mason,  10  Ohio  St.  277.  But  although  in  this  and  some  other 
States  counsel  fees  are  permitted  to  be  considered  by  the  jury  in  fixing  the  damages,  —  and 
indeed  can  practically  hardly  be  excluded  from  their  consideration  where  the  law  does  not 
furnish  in  actions  of  tort  an  exact  measure,  —  it  is  difficult  to  see  why  such  expenses  should  be 
allowed  un'der  the  head  of  exemplary  damages.  The  plaintiff's  counsel  fees  are  an  expense 
incurred  by  him,  and  their  reimbursement  to  him  brings  the  measure  of  damages  liack  towards 
the  standard  of  compensation.  It  is  an  item  of  compensation,  indeed,  not  usually  allowed 
on  what  still  seems  to  be  "the  theory  of  the  law,  that  every  man  can  be  his  own  advocate  ;  but, 
nevertheless,  it  is  really  compensation.  There  is  nothing  especially  punitory  as  regards  the 
defendant  in  the  fact  that  the  sum  in  which  he  is  mulcted  happens  in  whole  or  in  part  to 
represent  the  counsel  fees  paid  or  incurred  by  his  injured  adversary.  His  payment  to  the 
plaintiff  of  a  considerable  sum  is  equally  a  punishment,  whether  the  plaintiff' have  paid  a  like 
or  less  sum  as  counsel  fees  or  not.  Indeed,  when  the  jury  ai'C  permitted  to  break  beyond  the 
bounds  which  the  law  prescribes,  having  compensation  only  in  view,  it  will  be  found,  on 
analysis,  we  think,  that  every  attempt  to  introduce  other  standards  for  their  guidance  will  be 
futile.  The  allowance  of  counsel  fees,  or  their  supposed  equivalent,  in  this  class  of  cases,  must 


CH.    III.]  CONSEQUENTUL   DAMAGES.  107 

And  in  Alabama,  in  an  action  for  malicious  prosecution,  the 
Supreme  Court  has  said,  while  recognizing  the  conliict  of  author- 
ity, "We  can  readily  perceive  the  justice  and  good  sense  of  the 
rule  which  requires  a  party  who  wantonly  and  maliciously 
abuses  the  process  of  the  court,  or  sues  out  an  attachment  for 
the  purpose  of  worrying  and  harassing  the  defendant,  without 
probable  cause,  to  make  good  his  losses,  and  to  furnish  complete 
reparation  and  indemnity  for  the  injury  his  malice  has  occa- 
sioned ; "  and  the  defendant's  counsel  fees  for  defending  the 
original  suit,  were  allowed  to  be  "  proven  and  taken  into  con- 
sideration by  the  jury."  *  ^ 

And  it  may,  on  principle,  I  think,  be  considered  clear  that  in 
cases  proper  for  the  infliction  of  exemplary  or  vindictive  dam- 
ages, the  jury  in  estimating  those  damages,  have  a  right  to  take 
into  their  consideration  the  probable  expense  of  the  litigation. 
The  question,  however,  still  remains,  whether  counsel  fees  can 
be  allowed  in  cases  technically  of  tort,  but  where  no  actual 
fraud  or  malice  is  alleged. 

In  an  action  on  the  case  for  flowing  back  the  water  of  a  river 
in  Maine,  on  the  plaintiff's  lands,  although  no  malice  was 
proved.  Judge  Story  told  the  jury,  "  that  for  the  purpose  of 
giving  a  full  indemnity,  they  might  take  into  consideration  such 
expenses  of  fees  to  counsel,  and  such  other  necessary  expenses, 
as  they  might  think  were  properly  and  fairly  incurred ; "  and  on 
a  motion  made  for  a  new  trial  on  the  ground  that  the  damages 
were  excessive,  the  court  refused  to  interfere.! 

But  in  an  early  caset  in  the  Supreme   Court  of  the 
United  States,  of  a  libel  filed  by  the  Spanish  consul,  for  [99] 
restitution  of  a  Spanish  vessel  captured  by  a  French  ves- 
sel, it  appeared  that  a  charge  of  sixteen  hundred  dollars  for 
counsel  fees  in  the  courts  below  had  been  admitted  ;  and  the 
court   said,  "  We  do  not  think  that  this  charge  ought  to  be 

*  Marshall  v.  Betner,  17  Ala.  833.  t  Arcambel  v.  Wiseman,  3  Dall.  306. 

t  Whijjple  V.   Cumberland   Manufacturing 
Co.  2  Story,  661. 

be  regarded  as  the  result  of  an  instinct  or  inclination  on  the  part  of  the  bench  to  return  to  the 
standard  of  compensation.  (See  post,  467,  note.)  Since  writing  the  foregoing  note,  we  have 
met  with  the  case  of  Fairbanks  v.  Witter,  18  Wis.  287,  in  which  similar  views  are  expressed, 
the  court  saying  :  "  Counsel  fees  can  no  more  be  allowed  in  actions  where  punitory  damages 
can  be  given  than  in  others  ;  "  and  that  if  they  can  "  be  assessed  by  the  jury,  it  must  be  on  the 
principle  that  they  are  consequential  damages,  and  relate  to  the  amount  of  compensation,  rather 
than  refer  to  damages  which  may  be  inflicted  by  way  of  penalty  or  punishment  for  aggravated 
misconduct."  And  in  Day  v.  Woodworth,  13  How.  363,  the  court  say,  alluding  to  the  (juestion 
discussed  in  the  text,  "  The  punishment  of  the  defendant's  delinciuency  cannot  be  measured  by 
tlie  expenses  of  the  plaintiff  in  prosecuting  his  suit.  It  is  true  that  damages,  assessed  by  way 
of  example,  may  thus  indirectly  compensate  the  plaintiff  for  money  expended  in  counsel  fees  ; 
but  the  amount  of  these  fees  cannot  be  taken  as  the  measure  of  punishment,  or  as  a  necessary 
element  in  its  infliction." 
1  Compare  Burnap  v.  Wight,  14  Dl.  301. 


108  CONSEQUENTIAL   DAMAGES.  [ciL   HI. 

allowed.     The  general  practice  of  the  United  States  is  in  oppo- 
sition to  it." 

In  Patent  Cases.  —  In  an  action  for  the  violation  of  a  patent 
right  *  Story,  J.,  at  the  trial,  considered  it  the  established  rule, 
in  estimatintjc  damasres  in  cases  of  mere  tort,  whether  the  action 
wa^for  redress  of  a  personal  injury  or  the  vindication  of  a  per- 
sonal right,  to  allow  counsel  fees  and  the  expenses  of  witnesses, 
beyond  the  taxable  costs,  as  items  of  actual  damage  ;  on  a  re- 
view of  the  question,  however,  he  overruled  his  own  decision,  on 
the  authority  of  the  preceding  case. 

But  subsequently  t  the  same  learned  judge  examined  the  case 
of  Arcambel  v.  Wiseman  at  length,  and  declared  it  shaken  so  far 
as  it  could  be  considered  as  containing  any  general  doctrine  ; 
and  in  the  principal  case,  which  was  a  patent  suit,  "  he  returned 
to  what  he  originally  considered  the  true  doctrine,  namely,  that 
the  jury  are  at  liberty,  if  they  see  fit,  to  allow  the  plaintiff,  as 
part  of  his  actual  damage,  any  expenditure  for  counsel  fees,  or 
other  charges  which  were  necessarily  incurred  to  vindicate  the 
rights  denied  under  his  patent,  and  are  not  taxable  in  the  bill 
of  costs."  It  is  to  be  borne  in  mind  that  these  cases  turned  on 
the  construction  of  the  phrase  "  actual  damage,"  in  the  Patent 

Law.J  And  he  subsequently  adhered  to  the  doctrine. 
[100]  In  one  of  the  latest  cases  tried  before  him  on  the  Rhode 

Island  circuit,  he  used  this  language  :  "  If  the  plaintiff 
has  established  the  validity  of  his  patent,  and  that  the  defend- 
ants have  violated  it,  he  is  entitled  to  such  reasonable  damages 
as  shall  vindicate  his  right,  and  reimburse  him  for  all  such 
necessary  expenditures  as  have  been  necessarily  incurred  by 
him  beyond  what  the  taxable  costs  will  repay,  in  order  to  re- 
establish that  right My  understanding  of  the  law  is, 

that  the  jury  are  at  liberty,  in  the  exercise  of  a  sound  discre- 
tion, if  they  see  fit  (I  do  not  say  that  they  are  positively  and 
absolutely  bound  under  all  circumstances),  to  give  the  plaintiff 
such  damages,  not  in  their  nature  vindictive,  as  shall  compensate 

*  Whittemore  v.  Cutler,  1  Gall.  429.  missed,  the  captors  were  allowed  their  reason- 

t  In  the  Boston  Mauufacturiug  Co.  v.  Fiske,  able  costs   and  expenses,  on   the  ground  that 

2  Mason,  120.  there  was  probable  cause  of  capture. 

J  In  admiralty  it  has  been  since  said,  by  the  In  the  Amiable  Nancy,  3  Wheaton,  546  and 

Supreme  Court  of  the  United  States,  to  be  562,  costs  and  expenses  were  allowed, 

the  common   course   to    allow   counsel    fees.  In   the  Venus,    5    Wheaton,    127,  captor's 

either  in  the  shape  of  damages,  or  as  part  of  costs  and  expenses  were  allowed.     And   the 

the  costs,  and  that,  as  well  on  the  instance  as  same  decision  was  made  in  the  case  of   the 

the  prize  side  of  the  court;  and  such  anal-  London  Packet,  5  Wheaton,  122.    These  cases 

lowance  was  once  made  to  the  extent  of  five  are  cited  by  the  learned  reporter  at  the  end 

hundred  dollars.  The  Apollon,  9  Wheat.  163  ;  of  the  above  case,  but  unless  "expenses"  in- 

and  Canter  v.  American  and  Ocean  Ins.  Com-  elude  "  counsel  fees,"  they  do  not  bear  upon 

pany,  3  Peters,  307.     In  the  Maiy,  9  Cranch,  the  question. 
126,  a  capture  case,  though  the  libel  was  dis- 


en.    III.]  CONSEQUENTIAL   DAMAGES.  109 

the  plaintiff  fully  for  all  his  actual  losses  and  injuries,  occasioned 
by  the  violation  of  the  patent  by  the  defendants."  * 

But  on  the  Pennsylvania  Circuit,  the  correctness  of  these  de- 
cisions has  been  denied.  It  was  said  that  this  doctrine  had  l)een 
introduced  from  courts  of  admiralty,  ■\vhich  could  not  alTord 
proper  precedents  for  tribunals  following  the  course  of  the  com- 
mon law ;  that  the  term  "  actual  damages  "  in  the  Patent  Act 
did  not  countenance  the  doctrine ;  and  that  if  permitted,  it 
w^ould  introduce  a  great  inequality  between  the  plaintiff  and 
the  defendant,  who  could  in  no  case  recover  his  counsel  fees ; 
and  on  these  grounds  counsel  fees  were  declared  not  capable  of 
being  included  in  the  estimate  of  the  plaintiff's  damages.!^ 

Not  Allowed  where  no  Aggravation.  —  The  question  had 
been  previously  considered  on  the  same  circuit,  in  an  action  of 
trespass  against  the  marshal  of  the  United  States,  for  making 
an  illegal  levy  on  certain  teas ;  and  no  circumstances  of  aggra- 
vation being  show^i,  Mr.  Justice  Baldwin  held  that,  this  being 
so,  the  jury  could  not  allow  the  plaintiff  his  counsel  fees  by 
way  of  damages.     He  said  :  — 

"  It  may  be  thought  a  hardship  that  the  plaintiiFs  shall  not  be  allowed  their 
actual  disbursemeuts  in  recovering  their  property ;  but  the  hardship  is  equally 
great  in  a  suit  for  money  lent,  or  to  recover  possession  of  land ;  they  are  deemed 
in  law  losses  without  injury,  for  which  no  legal  remedy  is  afforded.  I  am,  there- 
fore, of  opinion  that  you  cannot,  in  assessing  damages  in  this  case,  allow  any  of 
the  items  claimed  by  the  plaintiffs  for  disbursements,  they  being  consequential 
losses  only,  and  not  the  actual  or  direct  injury  to  the  property  which  they  have 
sustained  by  its  seizure  and  detention,  for  which  alone  they  are  entitled  to 
recover  damages  in  this  case,  it  not  being  attended  with  any  circumstances  |_101J 
of  aggravation  on  the  part  of  the  defendant.  Had  there  been  any  such, 
a  very  different  rule  would  have  been  applied,  by  reimbursing  the  plaintiffs  to 
tlie  full  extent  of  all  their  expenses  and  consequential  losses."  { 

And  so  far  is  the  principle  carried  the  other  way  in  Massa- 
chusetts, that  a  trustee  (or  garnishee),  in  whose  hands  the  funds 

*  Pierson  v.  Eagle  Screw  Co.  3  Story,  402  ;  t  StimiDson   v.  The   Railroads,  1    Wallace, 

and  so,  too,  held  l)y  Judge  Woodbury,  in  the  Jr.  1G4. 

same  circuit,  Allen  v.  Blunt,  2  Woodb.  &  M.  t  I'acitic  Ins.   Co.  v.   Conard,  1    Baldwin, 

121.  138. 

1  And  in  the  case  of  the  Margaret  v.  The  Conestoga,  2  Wallace,  Jr.  116,  the  same  learned 
judge  (Mr.  Justice  Grier),  while  apparently  admitting  the  discretionary  power  of  the  Admi- 
ralty Cuurt  to  allow  counsel  fees,  ex])rcssed  his  strong  repugnance  to  its  exercise,  saying  that 
the  principle  partook  rather  of  the  Hall  of  the  Cadi  than  the  judgment-seat  of  the  court. 

See  Day  v.  Woodworth,  13  How.  363 ;  Guyon  v.  Serrell,  1  Blatchf.  C.  C.  R.  244  ;  also, 
Blanchard's  Gun  Stock  Tiu-ning  Factory  v.  Warner,  Ibid.  258,  where  it  is  held  that  in  patent 
suits  the  plaintiff's  expenses  and  counsel  fees  will  not  be  allowed  to  him  as  j)art  of  his  dam- 
ages. As  to  allowance  of  costs  where  a  disclaimer  has  been  entered,  see  Seymour  v.  McCor- 
mick,  19  How.  96  ;  Guyon  v.  Serrell,  1  Blatchf.  C.  C  R.  244. 


110  CONSEQUENTIAL    DAJMAQES.  [CH.    HI. 

of  the  debtor  are  found,  can  retain  nothing  to  meet  the  expenses 
of  Utigation.* 

It  is  not  easy  to  say  what  should  be  the  general  rule  on  the 
subject,  though  it  is  evident  that  great  incongruity  has  crept  in. 
Nothing  is  more  difficult  than  to  fix  the  precise  limit  to  which 
society  should  go  in  awarding  reparation  by  means  of  its  civil 
tribunals.  Legal  relief  is  at  the  best  extremely  imperfect ;  and 
the  charges  of  counsel  are  a  very  formidable  item  in  those  ex- 
penses which  tend  so  largely  to  reduce  to  the  plaintiff  the  real 
benefit  of  his  recovery ;  while  on  the  other  hand,  it  may  be  said 
with  great  force,  that  the  questions  submitted  to  legal  discussion 
are  often  so  vexed,  that  it  is  very  doubtful  whether  the  prevail- 
ing party  is  really  entitled  to  a  complete  reimbursement ;  and 
that  if  absolute  indemnity  were  given,  a  great  stimulus  would 
be  furnished  to  litigation. 

But  at  all  events,  the  same  rule  should  be  applied  to  all  cases 
that  contain  no  element  of  actual  fraud,  malice,  or  vexation ; 
the  plaintiff'  and  defendant  should  be  treated  alike  ;  and  whether 
the  form  of  the  action  be  ex  contractu  or  ex  delicto^  the  remunera- 
tion, as  far  as  counsel  fees  is  concerned,  should  be  similar.  "  If 
this  principle  be  introduced  from  the  civil  law,"  says  Mr.  Justice 
Grier  on  the  Pennsylvania  Circuit,  "  both  parties  should  have 
the  benefit  of  it ;  a  defendant  should  not  be  left  to  contend  with 
such  odds  against  him.  In  actions  of  contract,  the  plaintiff  can 
recover  but  legal  costs.  His  equity  is  no  greater,  nor  his  injury 
of  a  higher  order  when  his  action  is  for  a  trespass  or  a  tort."  f  ^ 

Prospective  Damages.  —  Principles  analogous  to  those  which 
we  are  now  considering,  also  govern  the  allowance  of  damages 
which  arise  after  the  commencement  of  the  suit,  or  as 
[102]  they  are  sometimes  termed,  prospective  damages.  The 
rule  is  perfectly  clear  and  imperative,  that  where  the 
act  complained  of,  which  is  the  origin  of  the  damage,  took  place 
after  suit  brought,  it  cannot  be  given  in  evidence.  So  wheret 
debt  was  brought  against  the  marshal  of  the  marshalsea,  for  an 
escape,  and  the  plaintiff  offered  to  give  evidence  of  an  escape 
after  the  commencement  of  the  suit,  and  before  the  time  of 
pleading,  Tindal,  C.  J.,  of  the  Common  Pleas,  said,  "  It  is  quite 

*  Adams  v.  Cordis,  8  Pick.  260.  t  Stiinpson  v.  The  Railroads,  1  Wallace,  Jr.  164, 

J  Davis  V.  Chapman,  3  Scott,  New  Rep.  238. 

1  See  to  the  same  effect.  Day  v.  Woodworth,  13  How.  563.  Where  the  ma3'or  and  council 
of  Macon,  Ga.,  under  discretionary  power  given  in  their  charter,  removed  the  marshal  from 
office,  which  removal  was  subsequently  found  to  be  improper ;  Ildd,  that  they  were  bound  to 
pay  his  salary  for  the  whole  year ;  but  not  the  money  expended  by  him  in  defending  the 
charges  preferred.  His  damages  were  defined  to  be  such  as  necessarily  resulted  from  his 
amotion  from  office.     Shaw  v.  The  Mayor,  &c.,  of  Macon,  19  Ga.  468. 


CH.    III.]  CONSEQUENTIAL    D^UIAGES.  Ill 

clear  that  the  plaintiff  can  derive  no  aid  from  anything  occurring 
after  the  comniencenient  of  the  action." 

In  a  recent  action  for  a  libel,  which  had  led  to  the  plaintiff's 
arrest,  both  before  and  after  the  commencement  of  the  suit,  it 
was  held  that  the  defendant  might  insist  that  all  that  took  place 
subsequent  to  the  bringing  of  the  action  should  be  excluded 
from  the  consideration  of  the  jury  j  but  that  after  consenting 
to  the  admission  of  evidence  in  regard  to  what  took  place  after 
the  commencement  of  the  suit,  the  jury  were  at  liberty  to  take 
it  into  consideration.*  So  in  slander,  no  evidence  can  be  given 
of  words  spoken  after  the  commencement  of  the  action.!  ^ 

But  where  the  act  complamed  of  was  committed  before  suit 
brought,  and  a  good  cause  of  action  exists,  it  often  becomes  a 
question  whether  any  allowance  can  be  made  for  prospective 
damaores,  or  damas-es  which  accrue  after  action  brouofht.  "  The 
general  rule  in  personal  actions,"  says  Chief  Baron  Comyns,  "  is 
that  damages  are  allowed  only  to  the  time  of  the  action  com- 
menced."$  "Judgments,"  says  the  Constitutional  Court  of 
South  Carolina,  "  generally  refer  to  the  situation  of  the  parties 
at  the  commencement  of  the  suit.  If  at  that  time  the  plaintiff 
had  no  cause  of  action,  he  must  suffer  a  nonsuit.  It  is  then  the 
defendant  is  informed  of  the  wTong  with  which  he  is  charged, 
and  the  redress  which  is  demanded.  The  declaration,  which  is 
but  an  amplification  of  the  writ,  must  set  forth  the  form  and 
manner  of  injury,  to  enable  the  defendant  to  file  the  pleas 
necessary  to  his  defense,  and  the  judgment  must  correspond 
with  the  pleadings.  If  new  matter  be  introduced  subse- 
quent to  the  pleadings,  the  defendant  may  be  surprised,  [103] 
and  the  judgment  of  the  court  may  not  conform  to  the 
pleadings.§ 

So  in  an  early  action  on  the  case,  where  the  plaintiff  declared 
for  procuring  his  apprentice  to  depart  from  his  service,  and  for 
the  loss  of  his  service  for  the  whole  residue  of  the  term  of  liis 
apprenticeship,  and  the  jury  assessed  damages  generally,  judg- 
ment was  arrested,  because  it  appeared  that  the  term  was  not 
expired  at  the  commencement  of  the  suit.|l  ^     So,  too,  in  Massa- 

*  Goslin  V.  Corry,  7  Mann.  &  Gr.  343.  J  Comyn's  Digest,  Damages,  D  ;  and  Eo- 

t  Root  V.  Lowndes,  6  Hill,  518  ;  Keenholts     bert  Pilfold's  case,  10  Coke,  117. 
V.  Becker,  3  Denio,  346.  §  Duncan  v.  Markley,  1  Harper's  Rep.  276. 

II  Hambleton  v.  Veere,  2  Saund.  196. 

1  And  so  too  in  libel.  Philadelphia,  Wihnington,  and  Baltimore  R.  R.  Co.  v.  Quigley,  21 
How.  (U.  S.)  202. 

2  So,  too.  lately  held  the  English  Exchequer,  on  the  ground,  however,  that  the  contract  of 
apprenticeship  was  by  deed  and  still  binding  on  the  parties.  (1862.)  Lewis  v.  Peachy,  1  H. 
&  C.  518.  Compare  Moore  v.  Love,  3  Jones  (N.  C.)  L.  215.  In  New  York,  in  an  action  to 
recover  damages  for  enticing  the  ])laintifF's  son  away,  and  inducing  him  to  enlist  in  the  army 
for  three  years,  as  a  substitute  for  the  defendant,  it  was  lately  held  by  the  Supreme  Court, 
that  the  plaintiff  could  only  recover  to  the  time  of  the  commencement  of  the  action,  or  at 
most  to  the  time  of  the  trial.    Covert  v.  Gray,  34  Howard's  Pr.  R.  450.    Balcom,  J.,  dissented. 


112  CONSEQUENTIAL   DAMAGES.  [ciI.    III. 

chusetts,  it  has  been  said,  "  The  cases  are  decisive  that  by  the 
coiniuon  Liw  the  plaintiff  can  recover  damages  only  to  the  time 
of  bringing  the  action,  and  that  in  this  respect  there  is  no  dis- 
tinction between  actions  of  covenant  and  of  tort."  *  ^ 

But  the  application  of  this  general  principle  is  often  attended 
by  serious  eml)arrassnient,  both  in  actions  of  covenant  and  of 
tort ;  the  former  where  the  agreement  covers  a  long  space  of 
time,  and  the  latter  where  the  wrongful  act  is  followed  by  inju- 
rious consequences.  The  question  is,  in  the  former  case,  whether 
the  agreement  is  to  be  treated  as  a  continuing  one,  and  a  fresh 
action  brought  for  every  breach,  or  whether  on  the  first  breach 
final  damages  must  be  assessed.^  And  so  in  regard  to  torts, 
whether  but  one  action  can  be  l^rought,  or  whether  a  new  suit 
must  be  had  for  the  consequences  after  they  have  appeared.! 

Direct  Consequences  may  be  Considered.  —  As  a  general  prop- 
osition, it  may  be  said  that  the  plaintiff  is  at  liberty  to  prove, 
and  the  jury  are  bound  to  take  into  consideration,  those  direct 
and  immediate  consequences  of  the  act  complained  of,  which 
are  so  closely  connected  with  it  that  they  would  not  of  them- 
selves furnish  a  distinct  cause  of  action.^  But  it  is  very  difficult 
in  many  cases  to  define  the  point  where  the  law  will  stop  in  the 
investigation  of  these  probable  consequences.  The  question 
was  early  considered  by  Lord  Holt  in  a  case  of  tort.J  The 
plaintiff  declared  of  a  battery,  alleging  that  he  had  previously 
brought  an  action  for  it  against  the  defendant,  and  recovered 
c£ll,  and  no  more  ;  and  that  afterwards  part  of  his  skull,  by 
reason  of  the  said  battery,  came  out  of  his  head,  and 
[104]  for  this  subsequent  damage  the  suit  was  brought.  The 
defendant  pleaded  the  recovery  in  bar,  and  demurrer. 
And  Shower,  iwo  querente,  argued,  "  that  if  a  consequence  will 
take  away  an  action,  for  the  same  reason  it  will  give  an  action." 
But  judgment  was  given  for  the  defendant,  the  whole  court 
being  of  opinion  "  that  the  jury,  in  the  former  action,  consid- 
ered the  nature  of  the  wound,  and  gave  damages  for  all  the 

*  Powers  et  al.  v.  Ware,  4  Pick.  106  ;  Pierce  ch.   vii.    in    speaking    of   continuing   Agree- 

V.  Woodward,   6  Pick.  206.     See,  also,  Cath-  mcnts. 
erwood  v.  Caslon,  1  Car.  &  Marsli.  431.  J  Fetter  v.  Beal,   1  Lord   Raymond,  339  ; 

t  We  shall   have  occasion    to  discuss  this  s.  c.  1  Salk.  11. 
subject  again  under   the  head   of  Contracts, 

1  Additional  damage  from  the  continued  withholding  of  the  conveA-ance  of  real  estate  sus- 
tained after  the  commencement  of  a  suit  for  breach  of  a  contract  to  convey  it,  cannot  be 
recovered  in  that  action,  but  may  in  a  subsequent  one.  Warner  v.  Bacon,  8  Gray,  397.  See 
Gordon  v.  Brewster,  7  Wis.  355. 

^  See  Clossman  v.  Lacoste,  28  Eng.  L.  &  E.  140. 

**  Chamberlain  v.  Porter,  9  Minn.  260;  Cuoke  v.  England,  27  Md.  14. 


CH.    III.]  CONSEQUENTIAL   DAMAGES.  113 

damfige  that  it  had  done  the  plaintiff."  Tlie  case  was  moved 
again,*  when  Holt,  C.  J.,  said,  "  If  this  matter  had  been  given  in 
evidence  as  that  which  in  i^rohahillbj  might  have  been  the  conse- 
quence of  the  battery,  the  plaintiff  would  have  recovered  dam- 
ages for  it.  The  injury,  which  is  the  foundation  of  the  action, 
is  the  battery,  and  the  greatness  or  consequence  of  that  is  only 
in  aggravation  of  damages."  ^ 

So  where  the  defendant  was  employed  as  an  attorney,  to  in- 
vestigate securities  on  which  a  loan  was  to  be  made,  and  it  was 
alleged  that  he  had  neglected  to  use  proper  care,  and  that  the 
securities  had  proved  defective,  that  a  large  amount  of  interest 
was  lost,  and  that  probably  a  portion  of  the  principal  w^ould  be 
also  lost;  the  statute  of  limitations  was  pleaded,  and  it  appeared 
that  the  examination  of  the  title  took  place  in  1814  ;  but  that 
the  insufficiency  was  not  discovered  till  1820,  up  to  which  time 
the  interest  was  paid.  It  was  insisted  that  the  statute  ran,  not 
from  the  time  when  the  insufficient  security  was  taken,  but  from 
the  period  when  the  special  damage  alleged  in  the  declaration, 
namely,  the  loss  of  interest,  accrued.  But  the  statute  was  held  a 
good  bar,  and  Holroyd,  J.,  said,  "  If  the  action  had  been  brought 
immediately  after  the  insufficient  security  was  taken,  the  jury 
would  have  been  bound  to  give  damages  for  the  prol)al)le  loss 
which  the  plaintiff  was  likely  to  sustain  from  the  invalidity  of 
the  security."  f  And  the  authority  of  this  case  was  very  re- 
cently recognized  in  the  Court  of  Chancery,  by  Mr.  Vice- Chan- 
cellor Wigram.t 

In  a  very  analogous  case,  an  action  of  assumpsit  against  an 
attorney  for  negligence,  the  Supreme  Court  of  the  United 
States  said,  "  When  the  attorney  was  chargeable  with 
negligence,  his  contract  was  violated,  and  the  action  [105] 
might  have  been  sustained  immediately.  Perhaps,  in 
that  event,  no  more  than  nominal  damages  may  be  proved,  and 
no  more  recovered  ;  but,  on  the  other  hand  it  is  perfectly  clear 
that  the  proof  of  actual  damages  may  extend  to  facts  that  occur 
and  grow  out  of  the  injury,  even  up  to  the  day  of  the  verdict."  § 
But  where  the  act  itself  is  lawful,  and  the  action  is  sustained 

*  Fetter  v.  Boal,  1  Lord  Raymond,  692.  Jainiarv,  1848).    Sec  2  Saund.  by  Williams, 

t  Howell  V.  Young,  5  B.  &  Cres.  259.     See  n.  C3,  E. 
Gillon  V.  Boddint;ton,  1  K.  &  M.  161.  §  Wilcox   et  al   v.   Ex'rs   of  Phimmer,   4 

i  Smith  V.  Fox,   12  Jur.   130    (21   and  20  Peters,  172  and  182. 

1  In  an  action  for  assanlt  and  battery,  the  plaintiff  may  recover  for  damages  accruing  after 
the  commencement  of  the  suit,  provided  they  are  the  direct  and  natural  consequences  of  the 
battery.  Birchard  v.  Booth,  4  Wis.  67.  So  in  an  action  by  a  husband  against  a  railway  com- 
pany for  an  injury  to  his  wife,  his  expenses  for  her  cure  incurred  after  the  bringing  of  the  suit 
were  allowed.     Hopkins  v.  Atlantic  and  St.  Lawrence  Railroad,  36  N.  H.  9. 


114  CONSEQUENTIAL   DAMAGES.  [CH.    III. 

only  in  consequence  of  special  damage,  as  in  case  of  an  overflow 
of  lands  by  reason  of  a  culvert  being  negligently  erected  by  a 
railroad  company,  here  the  statute  only  begins  to  run  from  the 
time  that  the  consequential  injury  occurred.* 

In  Kentucky,  also,  the  rule  is  recognized  that  loss,  accruing 
subsequent  to  the  suit,  may  be  recovered,  where  the  subsequent 
damages  are  the  mere  incident  or  accessory  of  the  principal 
thing  demanded,  and  no  action  can  be  maintained  for  them.f 
But  in  the  same  State,  in  an  action  on  the  case  for  diverting  the 
water  of  a  stream,  it  was  held  by  the  Court  of  Appeals,  that  the 
plaintifl'  could  legally  recover  only  for  damages  he  had  sus- 
tained up  to  the  commencement  of  the  suit^:  ^  And  so  in  South 
Carolina,  in  an  action  on  the  case  for  damages  occasioned  by  a 
nuisance,  damages  sustained  after  action  brought  have  been  held 
not  to  be  recoverable.§  ^ 

In  New  York,  also,  the  same  rule  has  been  laid  down  in  a 
similar  case,  brought  by  tenant  for  one  year,  against  his  land- 
lord for  obstructing  his  lights;  but  in  delivering  its  judgment, 
the  court  said,  "  Suppose  the  lease  to  have  contained  a  cove- 
nant not  to  obstruct  the  light,  and  the  action  to  have  been 
brought  on  such  covenant,  the  rule  of  damages  would  be  other- 
wise ;  for  the  covenant  being  a  single  cause  of  action,  one  re- 
covery on  it  would  be  an  absolute  bar  to  any  further  action."  |1  ^ 

Prospective  Damages  in  Contract.  —  And  this  brings  us  to 
the  consideration  of  the  subject  of  prospective  damages,  as  con- 
nected with  cases  of  contract.^ 

*  Delaware    and    Raritan    Canal    Co.    v.  Illinois,   see  Greenup  v.    Stoker,   2    Gilman, 

Wright,  1  Zabriskie's  New  Jersey  Eep.  469.  688. 

t  Trigg  V.  Northcut,  Lit.  Sel.  Cas.  414.  §  Duncan  v.  Marklcy,  1  Harper's  Rep.  276. 

J  Langford   v.   Owsley,   2   Bibb,   215.      In  ||  Blunt  r.  McCormick,  3  Deuio,  283. 


1  And  see  Shaw  v.  Etheridge,  3  Jones  (N.  C.)  L.  300. 

2  So  in  Alabama  in  an  action  for  damages  for  overflowing  lands.  Polly  v.  McCall,  1  Ala. 
Select  Cases,  246. 

2  For  obstructing  the  plaintifTs  right  of  way,  or  for  unlawfully  excluding  the  light  from  his 
doors  and  windows,  the  damages  are  to  be  assessed,  not  to  the  time  of  trial,  but  to  the  date  of 
the  writ.     Cole  v.  Sprowl,  35  Me.  161  ;  see  Fettretch  v.  Leamy,  9  Bosw.  510. 

In  case  for  a  nuisance,  if  the  act  done  is  necessarily  injurious,  and  is  of  a  permanent  nature, 
the  party  injured  may  at  once  recover  his  damages  for  the  whole  injury.  But  if  the  act  done 
is  not  necessarily  injurious,  or  if  it  is  contingent  whether  further  injury  may  arise,  the 
plaintiff  can  recover  damages  to  the  date  of  his  writ  only.  The  Town,  of  Troy  v.  The  Cheshire 
Railroad  Co.  3  Post.  (N.  H.)  83. 

*  Rents  and  profits,  in  an  action  therefor,  are  recoverable  only  up  to  the  date  of  the  writ. 
Larrabee  v.  Lambert,  36  Me.  440.  In  a  suit  upon  a  bond,  commenced  after  a  breach,  the 
damage  occurring  during  its  pendency  may  be  included  in  the  judgment ;  also  compensation 
for  necessary  services  rendered  and  expenses  paid  in  relation  thereto.  Gennings  v.  Norton,  35 
Me.  308.  In  a  suit  upon  a  bond  binding  the  obligor  not  to  exercise  a  trade  within  certain 
limits  of  time  and  place,  damages  may  be  recovered  for  the  breach  that  are  sustained,  even 
after  the  date  of  the  writ,  and  up  to  the  time  of  trial.     Whitney  v.  Slayton,  40  Me.  224. 


CH.    III.]  CONSEQUENTIAL   DAMAGES.  115 

The  rule  arbitrarily  limiting  the  damages  to  the  commence- 
ment of  the  suit,  was  so  long  adhered  to,  that  up  to  the 
time  of  Lord  Mansfield,  even  in  actions  of  assumpsit,  it  [106] 
seems  to  have  been  the  practice  to  compute  the  interest 
only  to  the  time  of  the  bringing  of  the  action  ;  that  great  judge, 
however,*  declared  the  true  doctrine,  and  said,  "  It  is  agreeable 
to  the  principles  of  the  common  law,  that  whenever  a  duty  has 
been  incurred  pending  the  writ,  for  which  no  satisfaction  can  be 
had  by  a  new  suit,  such  duty  shall  be  included  in  the  judgment 
to  be  given  in  the  action  already  depending."  But  "  in  trespass 
and  in  tort  new  actions  may  be  brought  as  often  as  new  injuries 
and  wrongs  are  repeated,  and  therefore  damages  shall  be  assessed 
only  up  to  the  time  of  the  wrong  complained  of" 

So,  if  by  reason  of  any  default,  a  party  is  made  liable  to  pay 
money,  the  right  of  action  is  vested,  and  suit  can  be  maintained 
against  the  one  in  default.  And  on  the  trial  evidence  may  be 
given,  and  recovery  had  of  sums  paid  subsequent  to  the  com- 
mencement of  the  suit,  by  reason  of  the  previous  liability.  But 
in  these  cases  it  is  necessary  that  care  should  be  taken  to  make 
the  declaration  broad  enough  to  cover  the  expenses  to  which 
the  plaintiff  is  apprehensive  he  may  be  put.  Thus  where  suit 
was  brought  on  an  agreement  to  assign  certain  premises  to  the 
plaintiff,  and  the  breach  assigned  was  that  the  defendant  did  not 
make  out  a  good  title,  by  reason  whereof  the  plaintiff  had  been 
necessarily  "  put  to  great  expense,"  in  and  about  investigating 
the  title,  the  plaintiff  sought  to  recover  the  amount  of  his 
attorney's  bill  and  broker's  bill,  both  of  which  had  been  paid 
after  the  commencement  of  the  suit.  It  was  insisted  that  the 
allegation  of  damages  was  erroneous,  and  that  merely  being 
liable  to  pay,  he  had  not  been  ^:>?<^  to  expense.  But  it  was  held 
sufficient  by  the  Queen's  Bench,  Lord  Denman,  C.  J.,  saying, 
"  If  the  plaintiff  alleges  he  has  paid  money,  he  must  prove  it ; 
but  if  he  says  that  he  has  been  put  to  expense,  I  think  we  may 
fairly  hold  that  such  an  allegation  amounts  to  no  more  than 
that  the  plaintiff  has  incurred  the  liability  to  pay  certain  ex- 
penses.! ^ 

So  in  Massachusetts,  in  suits  on  the  covenant  of  warranty 
and    against    incumbrances,    the    plaintiff'    may    recover    the 

*  Robinson  v.  Bland,  2  Burr.  1077  and  t  Eichardson  v.  Chason,  10  Q.  B.  R.  756  ; 
1086.  and  see  the  cases  there  cited. 


1  An  allegation  of  payment  of  a  ])hysician's  or  attorney's  bill,  is  not  sustained  by  proof  of  its 
having  been  incurred.  Tritchett  v.  Boevey,  1  C.  &  M.  775 ;  Jones  v.  Lems,  9  Dowl.  P.  C.  143  ; 
Ward  V.  Haws,  5  Minn.  440. 


116  CONSEQUENTIAL   DAMAGES.  [CH.    III. 

[107]  amount  fairly  and  justly  advanced  to  remove  the  incum- 
brance, though  paid  after  the  suit  begins.*  ^ 
So  where  the  plaintiff  sued  the  defendant  on  a  contract  made 
in  1810,  to  deliver  spring  wheat,  alleging  that  the  plaintiff  had 
re-sold  the  wheat  to  one  Shephard  as  spring  wheat,  but  that  it 
was  in  fact  winter  wheat,  and  that  in  consequence  thereof  it 
failed ;  hereupon  Shephard  sued  the  plaintiflj  and  recovered  a 
judgment,  which  the  plaintiff  paid  in  1818,  and  then  brought 
this  suit.  The  statute  of  limitations  was  pleaded,  and  the  Court 
of  King's  Bench  held  it  a  good  bar,  saying  that  the  breach  of  con- 
tract was  the  gist  of  the  action,  and  that  the  special  damage  was 
stated  merely  as  a  measure  of  the  damages  resulting  from  that 
cause  of  action ;  and  Bailey,  J.,  said,  "  If  the  plaintiff  had  failed 
in  proving  the  special  damage  in  the  case,  it  would  not  have 
been  a  ground  of  nonsuit."  f 

Continuing  Agreements. — The  subject  which  we  are  now 
considering  is  closely  connected,  as  I  have  said,  wdth  that  of 
continuing  agreements,  or  agreements  covering  a  long  space  of 
time.^  In  an  action  of  covenant  by  trustees  of  wife  against  the 
husband,  on  his  covenant  to  pay  off'  certain  incumbrances  within 
twelve  months,  although  no  special  damage  was  laid  or  proved, 
it  was  held  that  the  plaintiffs  were  entitled  to  a  verdict  for  the 
whole  amount  of  the  incumbrances. $ 

We  have  already  seen  that  the  day  of  the  breach  of  a  cove- 
nant to  pay  for  articles  furnished  for  a  building  is  in  New  York 
held  the  time  at  which  the  damages  are  to  be  estimated,  pro- 
vided the  plaintiff  elects  to  consider  it  in  that  light,  although  the 
covenant  is  broken  before  the  time  fixed  for  full  performance.§ 

And  thus,  perhaps,  we  are  furnished  with  the  elements  of  a 
sound  and  reasonable  rule  ;  which  varies,  however,  as  the  case  is 
one  of  contract  or  of  tort.  If  the  former,  and  if  the  original 
breach  of  contract  is  such  that  the  plaintiff,  at  all  events,  would 
be  entitled  to  nominal  damages,  then  he  can  go  on  to  give 
[108]  in  evidence  those  consequences  of  the  act  which  are  im- 

*  Leffingwelly.  Elliott,  10  Pick.  204;  Brooks  betaken  into  consideration,  but  the  question 

V.  Moody,  20  Pick.  474.  does  not  appear  to  have  been  discussed. 

I  Battley   v.   Paulkner,  3  B.   &  Aid.  288.  J  Lethbridge  v.  Mytton,  2  B.  &  Ad.  772. 

It  may,  perhaps,  be  doubted  whether  the  dam-  §  Supra,   76  ;    Ma'sterton    v.  Mayor,  &c.  7 

age  here  complained  of  was  not  too  remote  to  Hill,  72. 

1  In  an  action  for  breach  of  an  agreement  to  withdraw  another  suit,  the  costs  of  the  plaintiff 
in  the  former  action,  who  is  the  defendant  in  this,  may  be  recovered  if  paid  by  the  plaintiff  in 
this  at  any  time  before  verdict.     Hagan  v.  Riley,  13  Gray  (Mass.)  515. 

In  Indiana,  in  the  action  of  disseisin  as  regulated  by  the  Code  of  Procedure,  damages  may 
be  recovered  up  to  the  trial.     Pendergast  v.  M'Caslin,  2  Ind.  87. 

^  See  Shaffer  v.  Lee,  8  Barb.  (N.  Y.)  413,  where  many  cases  on  this  subject  are  reviewed. 
{Post,  226.) 


JH.    III.]  CONSEQUENTIAL    DAMAGES.  117 

mediately  traceable  to  it,  altliough  tliey  have  taken  place  after  i 
the  commencement  of  the  suit.  *  ^  The  English  decisions  are 
founded  on  the  idea  that  damages  are  to  be  given  for  the 
prohahilifi/  of  loss,  as  said  by  Holroyd,  J.,  in  Howell  v.  Young ;  t 
but  it  appears  to  us  that  in  cases  of  contract  the  American  rule, 
as  we  have  seen  suggested  above  by  the  Supreme  Court  of  the 
United  States,  in  Wilcox  v.  Plummer's  Ex'rs,1:  is  the  more 
correct.^ 

In  Contract  Future  Damages  must  be  Certain.  —  Actual  com- 
pensation^ should  never  be  given  for  merely  prolallc  damage. 
If  there  is  a  breach  of  contract,  the  right  to  nominal  damages 
exists  at  once  to  vindicate  the  right,  and  suit  may  be  brought ; 
if  those  consequences  of  the  act  for  which  the  law  renders  the 
party  in  default  responsible,  have  developed  themselves  so  as  to 
create  absolute  injury  before  the  verdict,  the  jury  are  bound  to 
give  compensation  for  such  injury ;  but  if  at  the  time  of  trial  the 
loss  is  still  only  probable,  the  verdict  should  be  but  for  nominal 
damages.  The  question  in  regard  to  continuing  agreements,  or 
agreements  covering  a  long  space  of  time,  although  frequently 
confounded  with  the  one  under  consideration,  is  in  truth  wholly 
distinct  from  it.  Where  an  agreement  covers  a  long  period  and 
is  broken,  there  is  no  doubt  that  suit  may  be  brought  at  once. 
Nor  is  there  any  doubt  that  prospective  damages  for  the  whole 
time  covered  by  the  contract  may  be  obtained.  A  question  has 
indeed  been  raised  whether  the  day  of  the  breach  is  to  fix  those 
damages ;  that  is,  whether  they  are  to  be  computed  according  to 
the  state  of  things  existing  on  that  day,  and  on  the  assumption 
that  such  state  of  facts  would  not  change  during  the  time  the 
agreement  has  to  run,  or  whether  proof  should  be  gone  into  as  to 
any  fluctuations  that  may  have  taken  place  prior  to  the  trial  of 
the  cause,  and  the  rights  of  the  parties  determined  by  the  precise 
facts.  But  this  is  rather  a  question  of  evidence,  which  we  shall 
consider  more  at  large  hereafter.  It  does  not  touch  the  question 
of  prospective  damages,  which  in  cases  of  contract  is  governed 
by  the  rule  stated  above.^ 

*  The  authority  of  the  English  cases,  as  to  \  Stipra,  107. 

the  effect  of   the  statute  of  limitations,  has  §   See  this  question  ably  discussed,  but  left 

been  recently  recognized  in  New  York.     Rod-  undecided,  in  Alabama,  in  Suedicor  v.  Davis, 

man  v.  Heddcn,  10  Wend.  498.  per  Chilton,  J.  17  Ala.  472. 

t  Supra,  107. 


1  Where  a  tenancy  at  will  is  wrongfully  terminated  by  the  landlord,  the  tenant's  damages 
are  not  restricted  to  the  beginning  of  the  suit,  but  he  may  recover  such  damtiges  as  are  the 
direct  result  of  his  expulsion,  up  to  the  time  when  the  tenancy  might  be  lawfully  determined. 
Palmer  v.  Crosby,  1  Blackf.  139  ;  Ashley  v.  Warner,  11  Gray,  43. 

'^  The  true  criterion  whether  a  party  can  recover  damages  for  non-performance  of  the  whole 


118  CONSEQUENTIAL    DAMAGES.  [CH.    III. 

Rule  in  Tort. — But,  on  the  other  hand,  if  the  case  be 
[109]  tort,  and  the  wrong  done  before  suit  brought,  then  the 
plaintiff  is  not  limited  solely  to  the  consequential  damage 
which  has  actually  occurred  up  to  the  trial  of  the  cause,  but  he 
may  go  on  to  claim  relief  for  the  prospective  damage  which  can 
then  be  estimated  as  reasonably  certain  to  occur.-^  So  in  an 
action  of  tort  for  wounding  the  plaintiff's  servant,  the  jury  may 
give  damages  for  the  loss  of  service,  not  only  before  action 
brought,  but  afterwards,  down  to  the  time  when,  as  appears  in 
evidence,  the  disability  may  be  expected  to  cease.*  And  there- 
fore fresh  damage  merely  will  not  give  a  fresh  action,  and  a  judg- 
ment in  a  suit  founded  on  a  single  act  of  tort,  will  be  a  conclusive 
bar  to  a  second  suit  for  the  same  injury,  although  harmful  con- 
sequences may  have  made  themselves  apparent  subsequent  to 
the  first  suit ;  as  it  will  be  held  that  in  the  first  verdict  the  plain- 
tiff recovered  all  he  was  entitled  to  claim.^  But  where  there  is  a 
repetition  or  continuation  of  the  trespass,  then  of  course  a  fresh 
action  will  lie ;  in  other  words,  as  it  is  sometimes  said,  injury 
and  damage  must  concur.^ 

The  decisions  which  we  have  thus  reviewed,  show  that  the  rule 
is  by  no  means  universal  that  the  rights  of  either  party,  whether 
plaintiff  or  defendant,  are  absolutely  concluded  by  the  state  of 
facts  at  the  time  of  the  commencement  of  the  suit.  As  many 
events  which  occur,  or  which  appear  certain  to  occur,  after  suit 
brought  may  increase  the  plaintiff's  demand;  so  there  may 

*  HodsoU  V.  Stallebrass,  11   Ad.  &  E.  301.     Whitney  v.   Clarendon,  18  Verm.  252;    but 
And  this  decision  has  been  fully  adopted  in  a     see  the  dissenting  opinion  of  C.  J.  Williams, 
well-reasoned   case  in   Vermont.      Adm'r   of 


contract,  and  so  for  damages  not  sustained  when  the  action  is  brought  and  the  suit  tried,  is 
whether  there  has  been  such  a  breach  of  the  contract  as  authorizes  the  plaintiff  to  treat  it  as 
entirely  ended.     Remclee  v.  Hall,  31  Vt.  582. 

1  Russ  V.  The  Steamboat  War  Eagle,  14  Iowa,  363  ;  Curtiss  v.  Rochester  and  Syracuse  R.  R. 
Co.  18  N.  Y.  534;  ajite,  85.  So  in  an  action  in  the  nature  of  waste.  Hicks  v.  Herring,  17 
Cal.  566.  So  where  one  had  let  a  slave  for  a  specified  time  to  another,  from  whose  possession 
it  was  immediately  taken  by  a  third  party,  it  was  held  in  Missouri  that  the  owner  might  re- 
cover the  value  of  the  slave's  services  from  the  ■\vrong-doer  for  the  whole  term,  although  the  suit 
was  brought  before  it  had  ended.  Moore  v.  Winter,  27  Mo.  (6  Jones)  380.  But  where  the 
reasonable  certainty  required  by  the  language  of  the  text  does  not  exist,  prospective  damages 
cannot  be  allowed.  And  where  the  court  awarded  as  damages  for  digging  a  ditch  on  the 
plaintiff's  land,  a  sum  sufficient  to  pay  the  expense  of  filling  the  ditch  and  restoring  the  land 
to  its  previous  condition,  the  measure  was  held  erroneous,  because  this  expense  might  never 
be  incurred,  and  might  exceed  the  injury  sustained,  which  should  furnish  the  measure  of  dam- 
ages.    De  Costa  v.  Massachusetts  Flatwater  Mining  Co.  17  Cal.  613. 

^  Where,  in  an  action  for  breaches  of  a  covenant,  the  plaintitf  was  entitled  to  damages 
accruing  siibsequently  to  the  bringing  of  the  suit,  but  under  the  erroneous  instruction  of  the 
court  damages  to  the  time  of  the  trial  only  were  given,  —  Held,  that  this  afforded  no  ground 
for  bringing  another  action  for  the  same  breaches.  Winslow  v.  Stokes,  3  Jones  (N.  C.)  L. 
285. 

'^  Plate  V.  N.  Y.  Central  R.  R.  Co.  37  N.  Y.  472.  See,  as  to  consequential  damages  in  cases 
of  marine  insurance,  post,  251,  note. 


CH.    III.]  CONSEQUENTIAL   DAMAGES.  119 

many  defenses  arise  after  the  bringing  of  the  action,  which 
will  be  fatal  to  it. 

Pleading.  —  The  question  has  often  been  discussed  whether 
such  defenses  can  be  shown  under  the  general  issue,  or  must  be 
specially  pleaded.  In  an  early  case,  where  the  captain  of  a  man- 
of-war  was  sued  by  the  master  of  a  trading  vessel  which  he  had 
seized  as  a  smuggler,  he  was  allowed  by  Lord  Mansfield  to  prove, 
under  the  general  issue,  a  certificate  of  probable  cause,  which 
was  a  flat  bar  to  the  action,  although  given  several  months  after 
suit  brought,  but  before  plea  pleaded.*  But  this  doctrine  has 
been  since  overruled.  And  it  is  now  settled  that  where  a 
matter  of  defense  arises  afteraction  brought,  it  should  be  [110] 
pleaded  ;  and  not  merely  in  bar  of  the  action,  but  specially 
pleaded  in  bar  of  the  further  maintenance  of  the  suit ;  as  where 
the  plaintiff  has  become  an  alien  enemy  after  bringing  his 
action.!  And  if  it  arises  after  the  plea  put  in,  it  must  be 
pleaded  puis  darrein.  The  principle  of  these  cases  has  been 
recognized  in  this  country.t  So  payment  after  action  brought 
cannot  be  given  in  evidence  under  the  general  issue.§  -^  In  the 
King's  Bench,  however,  where  the  declaration  is  considered  the 
commencement  of  the  suit,  a  j)ayment  after  the  writ,  but  before 
the  declaration,  can  be  given  in  evidence  under  the  general 
issue.  1 1 

In  a  recent  case  in  the  Queen's  Bench,  in  an  action  of  trespass 
for  taking  goods,  the  defendant  having  pleaded  only  the  general 
issue,  it  was  held  that  he  could  not,  even  in  mitigation  of  dam- 
ages, give  in  evidence  a  repayment  by  him,  after  action  brought, 
of  money  produced  by  the  sale  of  the  goods.  And  Lord  Den- 
man,  C.  J.,  said,  "  The  rights  of  parties  at  the  trial  are  the  same 
as  they  were  at  the  commencement  of  the  suit ;  or  if  they  are 
changed,  a  plea  puis  darrein  continuance  ought  to  place  the  new 
facts  on  the  record.  It  is  important  to  uphold  the  principle  that 
a  plaintiff  is  entitled  to  recover,  by  way  of  damages,  all  that  at 
the  commencement  of  the  suit  he  has  lost  through  the  wrong- 
ful act  for  which  the  defendant  is  sued."  ^  We  shall  have 
occasion  to  refer  to  this  subject  again  when  treating  of  Re- 
coupment.** 

*  Sullivan  v.  Montague,  Doug.  106.  \\  Worswick,  Adm'r,  v.  Beowick,  10  Barn. 

t  Le  Bret  v.  Pappillon,  4  East,  503 ;  Lee  v.     &  Cres.  676. 
Levy,  4  Barn.  &  Cres.  390.  1[  Rundle  v.  Little,  6  Q.  B.  R.  174. 

X  Covell  V.  Weston,  20  J.  R.  414.  **  Post,  eh.  xvii. 

§  Boyd  V.  Weeks,  2  Denio,  321. 

1  But  see  Dana  v.  Sessions,  46  N.  H.  .509. 


120  CONSEQUENTIAL   DAMAGES.  [CH.    III. 

Liability  of  Grantees  of  Franchises.  —  An  important  ques- 
tion connected  with  this  Ijranch  of  our  subject  has  frequently 
presented  itself,  as  to  the  liability  of  grantees  of  a  public 
franchise,  or  the  public  agents  of  government,  for  consequential 
damages  resulting  from  the  exercise  of  the  powers  granted  to 
them,  as,  for  instance,  in  the  case  of  canal  and  railroad  corpora- 
tions, or  commissioners  of  public  works.  The  question  some- 
times arises  in  actions  of  trespass,  sometimes  in  actions  on  the 
case ;  but  the  rule  is  substantially  the  same,  whatever  the  form 
of  action.  Where  property  is  actually  talten  for  the  purposes  of 
the  public  work,  our  constitutions  generally  declare  that  com- 
pensation must  be  made  ;  but  we  are  now  considering  the  cases 
where  immediate  or  consequential  injury  is  inflicted.  And  the 
general  rule  is,  that  wdiere,  in  the  absence  of  any  constitutional 

or  statutory  provision,  the  grantees  or  agents  have  not 
[111]  exceeded  the  power  conferred  on  them,  and  when  they  are 

not  chargeable  with  want  of  due  care,  no  claim  can  be 
maintained  for  any  damage  resulting  from  their  acts  \  actus  legis 
nemini  est  damnosus} 

Otherwise,  it  is  said,  the  absurdity  would  follow  that  opera- 
tions undertaken  and  conducted  by  virtue  of  the  supreme  author- 
ity, are  unauthorized  in  the  view  of  the  law,  and  lay  a  foundation 
for  damages.  The  proper  light  in  which  to  regard  the  matter 
is,  to  consider  the  grantee  of  the  franchise,  or  the  public  agent, 
so  long  as  he  does  not  transcend  the  authority  conferred  on 
him,  as  representing  the  government,  and  the  government  as 
acting  under  its  right  of  eminent  domain,  subject  of  course  to 
the  duty  to  provide  compensation,  where  that  duty  is  imposed 
by  the  Constitution,  and  to  that  only.*  ^     And  the  protection 

*  So  in  Pennsylvania,  neither  the  State  nor  r.  Newman,  12  Pick.  467  ;  The  Boston  Water 

a  person,  artificial  or  natural,  acting  by  its  Power  Co.  v.  The  Boston  and  Worcester  R. 

authority  under  a  law  which  the  legislature  is  R.    Co.   16    Pick.    512  ;    and    S.  C.  2.3  Pick. 

competent  to  make,  is  answerable  for  conse-  360 ;  King  v.  The  Severn  and  Wye  Eailroad 

quential  damages  occasioned  by  the  construe-  Co.  2  B.  &  Aid.   646  ;    Gov.  &   Co.   of  the 

tion  of  a  highway  any  further  than  is  specially  British  C.  P.  Manufactory  i>.  Meredith,  4  T.  R. 

provided  by  the  law  itself     Henry  v.  Pitts-  794  ;  Sutton  v.  Clark,  6  Taunt.  29  ;  Wardens 

burgh  Bridge  Co.  8  Watts  &  Serg.  85.     See  and  Commonalty  of  the  Mystery  of  Grocers  v, 

also,  Callender  v.  Marsh,  1   Pick.  418,  4.30  ;  Donne,   3   Scott,   356  ;   Bolton   v.   Crowther, 

Boston  and  Roxbury  Mill  Dam  Corporation  4  D.  &  R.  195;  The  King  v    Commissioners 

^  So  a"  party  obstructing  a  stream  by  a  railway  built  pursuant  to  legislative  authority  and 
thereby  causing  the  lands  of  the  adjacent  proprietors  to  be  ovei'flowed,  is  liable  only  for  so 
much  of  the  injury  as  results  from  not  providing  necessary  safeguards.  Bellinger  v.  The  N.  Y. 
Central  R.  R.  23  N.  Y.  42.  See  Kavanagh  v.  City  of  Brooklyn,  38  Barb.  232,  where  the  same 
principle  is  applied  to  damage  done  by  municipal  corporations  in  making  improvements 
authorized  by  law. 

^  See  the  City  of  Vincennes  v.  Richards,  23  Ind.  381.  A  municipal  corporation  is  not  liable 
for  damage  to  private  property,  unless  the  act  complained  of  was  without  authority  of  or 
against  law,  or  was  improperly  or  wantonly  executed.  Bennett  v.  City  of  New  Orleans,  14 
La.  Ann.  120.  And  so  of  consequential  damage  caused  by  a  turnpike  company.  Douglass  v. 
Boonsborough  Turnpike  R.  Co.  22  Md.  219. 


CH.    III.]  CONSEQUENTIAL   DAMAGES.  121 

is  extended  not  merely  to  the  immediate  grantees  of  the 
franchise,  or  the  immediate  agents  of  the  government,  [112] 
but  to  the  sub-agents  or  inferior  employees  who  are  act- 
ing under  the  same  general  authority.     The  loss  sustained  in 
all  such  cases  is  damnum  absque  injuria* ^ 

So  in  New  York,  w^here  in  grading  a  street,  the  ground  was 
cut  down  so  as  to  injure  an  adjacent  proprietor,  but  none  of  his 
land  w^as  actually  taken,  it  was  declared  that  the  loss  was  dam- 
num absque  injuria  ;  that  the  constitution  had  made  no  mention 
of  indirect  or  consequential  damages  ;  and  that  although  the 
proprietor  had  actually  suffered  injury,  still  it  could  not  be  said 
that  property  had  been  "taken  for  public  use,"  within  the 
meaning  of  the  constitution.! 

It  appears  to  me  the  decision  is  an  unfortunate  one,  although 
sound  perhaps  on  a  strict  construction  of  the  constitutional 
clause.  But  it  is  to  be  regretted  that  the  court  felt  itself  bound 
to  apply  a  strict  instead  of  a  liberal  interpretation.     The  tend- 

of  Sewers,  8  B.   &  C.  355  ;    The   Queen   v.  a  very  clear  and  satisfactory  exposition  of  the 

Eastern  Counties  Railway  Co.  1  Gale  &  Davi-  subject    in    the    American    Law    Magazine, 

son,  589  ;  Lehigh  Bridge  Co.  v.  Lehigh  Coal  April,  1843,  p.  5,  fi'om  which  many  of  these 

and  Navigation  Co.  4  Rawle,  9  ;  Lansing  v.  authorities  are  taken.     The  wlwle  subject  was 

Smith,  8  Cowcn,  146  ;  Steele  v.  President,  &c.,  recently  examined  in  Radcliff's  Ex'rs  v.  Mayor 

of  Western  Inland  Lock  Navigation,  2  Johns,  of  Brooklyn,  4  Comstock,  195.     The  doctiine 

283;  Livingston   v.   Adams,  8    Cowen,   175;  of  the  text  was  affirmed,  and  it  was  held  that 

Jennaine    v.    Waggoner,    1    Hill,   279 ;    and  persons  acting  under  an  authorit}-  conferred 

Waggoner  v.  Jermaine,  S.  C.  in  error,  7  Hill,  by  the  legislature,  to  grade,  level,  and  improve 

357  ;  Graves  v.  Otis,  2  Hill,  466.     Any  incon-  •  streets  and  highways,  if  they  exercise  proper 

venience  or  damage  suffered  in  consequence  of  care  and  skill,  are  not  answerable  for  the  con- 

the  proper  and  reasonable  repairs  of  a  public  sequential  damages  which  may  be  sustained 

highway  by  a  plank-road  corporation,  in  the  by  those  who  own  land  bounded  by  the  street 

legitimate  exercise  of  the  powers  conferred  by  or  highway.     See  in  Hatch  v.  Vermont  Cen- 

the  statute,  is  damnum  absque  injuria,  and  no  tral  K.  R.  Co.  25  Vt.  49,  a  very  full  and  able 

action  lies.  Benedict  v.  Goit,  3  Barb.  S.  C.  R.  opinion  by  C.  J.  Redfield  on  this  subject.  But 

459  ;  Bord.  &  So.  Amboy  T.  Co.  v.  The  Cam-  in  New  Jersey,  see  Delaware  and  Raritan  Co. 

den  &  Amboy  R.  R.  Co.  2  Harr.  (N.  J.)  314;  v.  Lee,  2  Zabriskie,  243,  where  a  canal  com- 

Hollister  v.  Union  Co.  9  Conn.  436  ;  Hooker  v-  pany  was  held  liable  for  damage  done  to  laud 

New  Haven  and  Northampton  Co.  14  Conn,  flooded  by  the  work. 

146;  Burroughs?;.  Housatonic  R.  R.  Co.  15  *  Vide  s(79?-a,  29. 

Conn.    124.      The   cases   are  not  in   perfect  t  Radclitf's  Ex'rs  v.  Mayor  of  Brooklyn,  4 

accord  with  each  other,  but  they  sustain  sub-  Comstock,  195. 
stautially  the  docti'ine  in  the  text.     See,  also, 

1  So  in  Monongahela  Bridge  Co.  t>.  Kirk,  46  Penn.  112;  Clarke  v.  The  Birmingham  and 
Pittsburgh  Bridge  Co.  41  Penn.  147.  And  see  Quin  v.  City  of  Paterson,  3  Dutch.  N.  J.  35. 
But  in  the  case  of  Tinsnian  v-  Belvidere  Delaware  II.  R.  Co.  2  Dutch.  148,  the  Supreme  Court 
of  New  Jersey,  while  admitting  the  weight  of  authority  in  favor  of  the  doctrine  of  the  text,  de- 
clares it  not  to  be  the  law  of  that  State.  So  far  as  the  rule  applies  to  public  agents  of  the 
government,  the  learned  court  does  not  question  it,  but  insists  that  to  maintain  that  corpora- 
tions holding  grants  of  public  franchises,  possess  sovereign  immunity  against  liability  for  dam- 
ages, leads  to  the  unjust  rule  that  no  redress  can  be  had  for  damages  resulting  from  tlicir  acts. 
In  answer  to  the  argument  that  it  would  be  absurd  that  an  act  authorized  by  law  should  lay  a 
foundation  for  damages,  the  court  say,  "  Where  is  the  absurdity  in  supposing  that  the  legisla- 
ture intended,  by  virtue  of  their  sovereign  power,  to  confer  upon  the  corporation  authority  to 
take  the  land  necessary  to  construct  the  road,  to  do  precisely  what  they  might  have  done  if 
they  had  owned  the  land  necessary  for  that  purpose,  leaving  their  common-law  liability  precisely 
where  it  would  have  stood  if  the  work  had  been  constructed  upon  the  lands  of  the  corporation 
without  the  aid  of  the  statute  1  " 


122  CONSEQUENTL\X    DAMAGES.  [CH.    III. 

ency  of  our  legislation  in  matters  of  puljlic  improvement  is  un- 
doubtedly to  sacrifice  the  individual  to  the  community  ;  and  we 
cannot  attach  too  much  importance  to  those  provisions  of  our 
fundamental  law  which  are  framed  to  protect  private  property 
against  encroachments,  which,  though  sanctioned  by  legislative 
enactment,  are  in  truth  often  dictated  by  private  interests.  We 
shall  have  occasion  to  consider  this  subject  again  when  treating 
of  damages  under  Statutes. 

General  Conclusions.  —  From  the  examination  which  we  have 
thus  made  of  this  branch  of  our  suljject,  it  is  apparent  that  it  is 
difficult  to  lay  down  any  general  rules  in  regard  to  the  extent 
to  which  the  law  goes  in  search  of  resulting  damages.  To  flicili- 
tate  any  effort  to  reduce  the  subject  to  principle,  a  division  of 
actions  into  three  classes  is  necessary. 

The  first  comprises  those  where  a  contract  is  made  for  the 
payment  of  money  alone ;  and  here  it  is  well  settled  that  the 
consequences  of  the  non-performance  cannot  be  inquired  into  in 
any  way,  and  that  payment  of  the  principal  sum  with  interest 
is  the  only  compensation  that  can  be  looked  for. 

Second,  those  where  the  contract  is  to  do,  or  to  refrain  from 
doing,  some  particular  thing.  Here  the  rule  of  the  civil  law  is 
perhaps  the  best  that  can  be  adopted ;  that  the  party  in  default 
shall  be  held  liable  for  all  losses  that  may  fairly  be  considered  as 
having  been  in  the  contemplation  of  the  parties  at  the  time  the 
agreement  was  entered  into.  Or,  in  other  words,  where  it 
appears,  or  may  fairly  be  inferred,  that  the  party  complaining 
of  the  non-performance  of  a  contract  has,  at  the  time  it  was  en- 
tered into,  turned  the  mind  of  the  party  whose  conduct  is  com- 
plained of  to  the  consequences  likely  to  ensue  from  default  on 
his  part,  and  such  consequences  do  ensue,  he  shall  be  held  re- 
sponsible for  them  as  having  stipulated  against  them. 

Third,  those  where  a  tort  is  committed,  or  the  action  is 
brought  for  a  violation  of  right,  unattended  by  any  of  those  cir- 
cumstances of  aggravation  which  give  the  control  of  the  matter 
to  the  jury.  These  cases  are  by  far  the  most  difficult  to  reduce 
to  principle.  We  have  no  money  standard  to  resort  to,  nor  any 
agreement  to  guide  us.^     The  general  rule  in  this  class  of  cases 

^  But  in  some  cases  a  money  standard  exists,  as  where  one  has  lost  a  sum  certain  by 
another's  negligence.  In  this  case  the  sum  lost  furnishes  the  measure.  So  in  California,  Avhere 
because  of  a  defect  in  a  notary's  certificate  of  acknowledgment  to  a  mortgage,  it  was  held  not  to 
import  notice  to  subsequent  incumbrancers,  and  the  lien  of  the  plaintift''s  mortgage  was  in  con- 
sequence postponed  to  that  of  a  later  one,  and  his  debt  thereby  lost,  in  an  action  by  the  mort- 
gagee against  the  notary  on  his  official  bond,  the  plaintiff  was  held  entitled  to  recover  the 
mortgage  debt  and  interest.  It  should  be  mentioned  that  by  statute  the  notary  was  liable  on 
his  official  bond  to  parties  injured  by  his  official  misconduct  for  "  all  damages  sustained." 
Eogarty  v.  Finlay,  10  Cal.  239. 


CII.    III.]  CONSEQUENTIAL   DAMAGES.  123 

is,  to  adhere  as  closely  as  possible  to  the  maxim,  that  the  nat- 
ural and  proximate  consequences  of  the  act  are  alone  to  Ije 
taken  into  consideration.  This  rule  is,  however,  subject  to  the 
qualification  that  the  motive  and  conduct  of  the  defendant  is  to 
a  certain  extent  to  be  taken  into  account,  and  that  even 
in  cases  where  vindictive  damages  cannot  be  demanded,  [113] 
the  law  will  go  further  in  quest  of  consequence  to  punish 
a  wrong-doer,  than  to  redress  an  act  of  pardonable  negligence. 
I  state  this  qualification,  as  it  is  undoubtedly  to  be  deduced  from 
the  adjudged  cases.  But  its  results  are  so  serious  that  I  maybe 
permitted  to  draw  the  attention  of  the  reader  more  fully  to  the 
matter.  And  I  do  not  know  that  it  can  be  done  more  satisfac- 
torily than  by  following  out  the  train  of  reasoning  which  the 
civilians  adopt  on  the  subject  of  culpa,  or  legal  liability. 

Doctrines  of  Civil  Law.  —  One  of  the  most  recent  and  best  of 
the  German  writers,  thus  speaks  :  — 

''  Responsibility  or  legal  liability  (Impidatio)  exists  whenever 
a  person  is  the  moral  cause  of  an  illegal  act,  and  must  bear  the 
consequences  thereof.  Culpa,  or  legal  fault,  goes  hand  in  hand 
with  imputatio,  or  legal  liability.  It  is  that  which  fastens  on  the 
person  charged  the  responsibility  of  the  transaction  ;  and  conse- 
quently the  phrases  are  often  convertible,  and  in  culpa  est,  he  is 
in  fault,  has  the  same  meaning  as  ei  imputatur,  he  is  respon- 
sible." 

"  Culpa  relates  both  to  acts  of  trespass,  or  those  embraced 
under  the  Aquilian  Law  [damnum  injuria  datum)  and  to  viola- 
tions of  contract.  Li  the  latter  cases  only  is  the  learning  of 
culjm  intricate  and  difficult ;  in  the  former  easy  and  simple.  In 
the  cases  which  come  under  the  Aquilian  Law,  dolus  and  cidpa 
have  the  same  effect,  and  the  latter  embraces  almost  everything ; 
but  in  matters  of  contract  the  liability  depends  on  the  nature  of 
the  duty  imposed  upon  the  party  charged ;  he  is  sometimes  an- 
sw^erable  for  dolus  or  cidpa  lata  ;  sometimes  for  cidpa  merely.  It 
hence  becomes  necessary  to  distinguish  more  carefully  between 
dolus  and  culpa,  and  especially  to  make  the  definition  of 
cidjM  lata  as  clear  as  possible."  *  And  a  large  space  is  [114] 
then  devoted  to  an  examination  and  definition  of  the  three 

*  Zurechnimg    (imputatio)    findet    namlich  und  daher  bewirkte,  dass  sic  ihm  ztiprerechnet 

statt,  wenn  jcniand   als   moralischo   Ursache  werden  kann  ;  daher  diese  Atisdriickc  im  jran- 

einer    rechtswidrigen     Handlung     angesehcn  zcn  denselben  Sinn  hervorbringen,  und  es  so 

wird,  so  dass  er  die  rechtlichen  Folgen  dersel-  oft  fiir  in  culpa  est  heisst  ei  imputatur.  —  Hasse, 

ben  tragcn  muss.    Schubl  {rul}>a)  und  Zurech-  Die  Culpa  des  Bomischen  Rcchts,  §  13,  p.  63. 

nung  geben  Hand  in  Hand  ;  jcne  bezeicbnct  Nach   dor   Aquilia   haben    dolus  und    culpa 

dasjenige   in  dem   Handelnden  was   ihn   zur  gleiche    Wirkungen,    nnd    die    culpa   unitasst 

moralischen  Ursache  der  Handlung  machte,  jederzeit  alles  :   im  Obligationcnrecht   richtet 


124  CONSEQUENTIAL   DAMAGES.  [cil.    m. 

shades  of  illegality,  dolus,  culpa  lata,  culpa  levis ;  a  subject  which, 
as  it  is  discussed  in  all  our  treatises  on  Bailment,  it  is  unneces- 
sary to  review  here.  In  the  case  of  the  Steamboat  New  World 
V.  King,*  Mr.  Justice  Curtis  describes  the  three  degrees  of  neg- 
ligence —  slight,  ordinary,  and  gross  —  and  says,  "  It  may  be 
doubted  if  these  terms  can  be  usefully  applied  in  practice." 

Objections  to  Considering  Motives  in  Measuring  Damages  for 
Torts.  —  My  object  is  to  call  attention  to  the  practical  result  of 
the  doctrine  stated  in  the  text ;  which  is  that  in  cases  of  tort, 
even  where  vindictive  damages  cannot  be  demanded,  the  de- 
gree of  fault  will  govern  not  only  the  question  of  liability, 
but  the  amount  of  remuneration  ;  and  accordingly,  as  the  act  is 
more  or  less  morally  wrong,  so  the  courts  will  make  the  guilty 
party  responsible  for  the  consequences,  more  or  less  remote,  of 
his  conduct.  It  is  very  plain  that  this  will  introduce  into  the 
subject  of  wrongs  all  the  nice  distinctions  which  exist  in  the  law 
of  Bailments,  and  others  still  more  perplexing ;  the  tribunal  will 
in  each  case  have  to  decide  not  only  a  legal  but  a  moral  ques- 
tion, and  to  determine,  moreover,  the  amount  of  consequences 
for  which  a  given  amount  of  immorality  or  negligence  is  to  be 
made  answerable.  There  seems  at  first  sight  reason  in  saying 
that  a  wrong-doer  should  be  visited  more  severely  with  the  con- 
sequences of  conduct  immoral  as  well  as  illegal,  than  when  the 
act  is  simply  the  breach  of  positive  law.  But  in  a  large  class 
of  cases  this  difficulty  is  already  obviated  by  the  allowance  of 
vindictive  damages ;  and  where  this  is  not  the  case,  there  is  in- 
herent difficulty  in  drawing  the  nice  distinctions  which  this  rule 
requires.  The  danger  to  be  apprehended  is,  either  that  the 
courts  will  loose  themselves  in  a  maze  of  abstract  casuistry,  as 
to  the  different  degrees  of  fault ;  or  that  in  despair  of  reducing 
the  subject  to  principle,  they  will  throw  the  responsibility  of  the 
matter  on  the  jury,  leaving  everything  to  their  vague,  fluctu- 
ating, and  all  but  uncontrolled  discretion.! 

Better,  1  humbly  think,  it  would  be,  in  all  matters  of  tort 
where  the  wrong  is  not  so  flagrant  as  to  warrant  vindictive  dam- 
ages, to  adhere  as  closely  as  possible  to  a  fixed  rule,  —  to  de- 

sich  dcr  Grad  der  prcestatio  cidpce  nach  dem  so  scharf  als  moglich  zu  fassen. — Ibid.  §  16, 

Grad  der  bcsondern  Verpflichtung,  welche  das  p.  73. 

bindende  Verbal tniss  mit  sich  bringt,  und  cs  *  16  Howai'd  (U.  S.),  474. 

wird  zuweilen  nur  dolus  und  die  ilim  gleich  t  Hasse,  in  his  12th  chapter,  p.  400,  admits 

stehende    culpa    lata,    gewohnlich    aber   auch  and  defends  the  almost  absolute  control  over 

mchr  prastirt.     Diese  nocli  unbestimmte  Be-  the  subject,  both  of  liability  and  remuneration, 

merkung  reicht  hicr  noch  bin  um  zuvorderst  which  the  vagueness  of  the  Roman  law,  in  its 

die  Nothwendigkeit  zu  zeigcn  den  dolus  von  definition  of   culpa,  necessarily    gave   to    the 

der  culpa  s.  str.  genauer  zu  unterschciden  als  judex,  whose   functions   answered  to  those  of 

es  bei  dcr  Aquilischen  culpa  nothig  war  und  "our  jury.     The  more  loose  the  law,  the  more 

dabei  voraemlich  den  Begritf  der  culpa  lata  absolute,  of  course,  the  tribunal. 


CH.    III.]  CONSEQUENTIAL   DAMAGES.  125 

clare  that  in  no  case  shall  the  measure  of  relief  depend 
on  the  motive  of  the  party,  and  that  the  remuneration  is  [115] 
in  all  cases  to  be  limited  to  the  natural  and  proximate 
consequences  of  the  act.  Even  this  is  vague  enough ;  for  lan- 
guage confesses  itself  incompetent  to  depict  the  nicer  shades  of 
ricrht  and  oblio-ation  :  and  all  rules  will  be  found  valueless  un- 
less  applied  and  expounded  by  tribunals  as  sagacious  as  they  are 
learned.^ 

Having  thus  examined  the  general  principles  which  govern 
the  measure  of  damages  in  regard  to  the  consequences  of  the 
act  complained  of,  we  now  proceed  to  consider  the  rule  of  com- 
pensation in  particular  actions ;  and  first,  of  those  in  which  are 
litigated  claims  to  the  possession  of  real  property. 

1  Although  authorities  may  be  found  which  depart  from  the  principle  of  compensation  in 
cases  other  than  those  proper  for  exemplary  damages,  they  are  not,  as  we  think,  consistent 
with  the  actual  doctrine  of  the  law.  By  that  doctrine,  as  we  understand  it,  there  is  in  civil 
jurisprudence,  no  "  debatable  ground"  or  border  land  between  these  two  domains  of  the  judicial 
forum.  There  are  but  two  principles  on  which  damages  are  decreed,  namely,  compensation 
to  the  injured  party,  and  punishment  of  the  wrong-doer  for  example's  sake.  In  some  instances, 
it  is  true,  where  the  injury  or  default  has  been  peculiarly  negligent  or  otherwise  especially 
unjustifiable,  the  courts,  in  awarding  damages,  have  sometimes  allowed  compensation  for 
secondary  or  consequential  injuries  which  in  less  flagrant  cases  would  be  thought  too  remote. 
But  these  decisions  can  be  fully  justified  only  on  the  same  grounds  which  sanction  exemplary 
damages,  and  must  be  regarded  as  simply  limiting,  by  the  principle  of  compensation,  the 
otherwise  unrestricted  range  of  those  damages.  The  blending  of  the  two  principles  tends  to 
confusion,  and  we  venture  to  siibmit  that  they  should  be  definitely  remanded  to  their  separate 
jurisdictions.     See  ante,  38,  39,  notes. 


CHAPTER  IV. 

MEASURE    OP   DAMAGES   IN   ACTIONS   FOR   POSSESSION    OF   REAL  PROPERTY. 

Rule  of  Damages  in  Actions  brought  to  recover  the  Possession  of  Real  Estate.  — 
In  Real  Actions  generally.  —  Ejectment.  —  Trespass  for  Mesne  Profits.  — 
Equitable  Defenses  Allowed.  —  Dower. 

Actions  for  Possession  of  Pieal  Estate.  —  Having  thus  dis- 
posed of  nominal  and  of  remote  or  consequential  damages,  we 
proceed  to  consider  the  rules  which  govern  the  measure  of  com- 
pensation in  the  various  forms  of  common-law  procedure.  And 
first,  of  those  actions  which  relate  to  the  possession  of  real 
estate. 

Five  of  the  first  chapters  of  Mr.  Sayer's  work  on  this  subject, 
to  which  I  have  already  referred,*  are  devoted  to  a  consideration 
of  the  law  of  damages  in  the  actions  of  Assize  of  novel  disseisin, 
Eniry  siir  novel  disseisin,  Assise  of  mort  d' ancestor,  Cosinage,  Aid  and 
Besaiel  Many  of  the  forms  of  real  actions  were  introduced  into 
America  from  the  mother  country,!  and  some  still  survive  ;  but 
the  particular  actions  above  mentioned  have  been  rarely,  if 
ever,  employed  in  the  Union ;  and  they  were  in  England  abso- 
lutely abolished  by  the  statutes  3  and  4  Will.  IV.,  ch.  27,  §  36 ; 
for  the  "  limitations  of  actions,"  which  swept  away,  indiscrim- 
inately, between  fifty  and  sixty  pieces  of  proceedings,  leaving 
as  the  only  real  or  mixed  actions,  a  ivrit  of  dower,  doiver  iinde 
nihil  habit,  quare  inipedit,  and  ejedment.X  Repeated  statutory 
changes  have  also  been  made  in  the  various  States  on  this  same 
subject,  the  general  result  of  which  has  been  that  the  actions 
of  ejectment  or  trespass  to  try  titles  and  dower,  are  the  only 
real  or  mixed  actions  now  in  extensive  use  in  the  Union. 
[117]  The  action  of  quare  impedit,  relating  to  a  species  of  prop- 
erty—  advowson  —  which  never  existed  among  us,  is 
wholly  a  stranger  to  American  jurisprudence. 

"Waste.  —  There  is  still  another  form  of  action  —  waste  —  by 

*  Introduction,  p.  1.  tide  by  Judge  Jackson,  American  Jurist,  vol. 

t  As  to  tlie  extent  to  which  the  real  actions  ii.  p.  65,  for  July,  1829,  to  the  same  point, 
were  adopted  by  us,  see  Kent's  Commentaries,         J  Warren's  Law  Studies,  1st  ed.  15  and  16, 

vol.  iv.  5th  ed.  p.  70,  in  notis.     And  see  an  ar-  in  notis. 


CH.    IV.]  DAMAGES    IN    REAL   ACTIONS.  127 

which  the  possession  of  real  estate  is  sometimes  changed,  and 
which  may,  perhaps,  strictly  belong  to  this  division  of  the  sub- 
ject ;  but  I  have  thought  that  it  might  be  more  conveniently 
and  appropriately  discussed  under  the  head  of  trespasses,  nui- 
sances, and  other  interferences  with  the  occupation  or  enjoy- 
ment of  real  property. 

The  actions  above  named  are  the  usual  modes  of  procedure 
with  us,  by  which  the  possession  of  real  estate  is  now  altered. 
It  is  necessary  briefly  to  allude  to  the  general  principles  regu- 
lating damages  in  real  actions  as  they  once  existed :  but  the 
sweeping  changes  which  have  been  effected  in  the  original 
structure  of  English  jurisprudence,  will  make  this  discussion  a 
ver}^  cursoiy  one ;  and  we  shall  then  examine  the  law  in  regard 
to  the  substitutes  which  have  now  taken  their  j^laces  —  eject- 
ment and  dower. 

Real  Actions.  —  In  real  actions,  properly  speaking,  damages 
were  not  originally  given  at  common  law,*  "  for  it  is  of  the 
essence  of  a  real  action,  that  only  a  real  thing  can  be  recovered 
therein ;  whenever  damages,  which  are  a  pecuniary  recompense, 
and  consequently  a  personal  thing,  are  recoverable  in  the  same 
action,  the  action  becomes  mixed."  f  By  the  statutes  of  Mor- 
ton, Marlbridge,  and  Gloucester,  however,^  damages  were 
given  in  the  principal  real  actions.  In  those  actions  [118] 
where  no  damages  were  directly  given,  and  in  which, 
pending  the  suit,  the  defendant  might  impair  the  value  of  the 
property,  the  ancient  writ  of  estrepement  §  gave  indirect  relief. 
It  lay  properly  in  real  actions,  where  the  plaintiff  could  not 
recover  damages  by  his  suit,  and,  as  it  were,  supplied  damages. || 

*  Saver  on  Damages,  5.  man  should  not  recover  damages  in  any  real 

t  Blackstone  says,  that  in  the  assize  of  novel  action,  as  in  dower,  before  the  statute  of  Mer- 

disseisin,  if  the  recognitors  find  the  seisin  and  ton,   c.  i.,  nor  in  Aiel,  Mordancestor,  before 

disseisin,    the    demandant    shall    recover   his  the  said  statute  of  Gloucester ;  but  in  actions 

seisin  and  damages  for  the  injury  sustained,  mixed,  as  in  assize,   entry  in   the  nature   of 

"  being  the  only  case  in  which  damages  were  assize,  or  in  personal  actions,  as  trespass  quare 

recoverable  in  any  possessory    action    at   the  clausum  fregit,   of   goods    taken   away,"   etc. 

common  law,  the  tenant  being  in   all   other  See  also,  Roscoe  on  Real  Actions,  i.  307. 

cases  allowed  to  retain  the  intermediate  j)rofits  %  20  Hen.  III.  c.  3 ;    52  Hen.  HI.   c.  16; 

of  the  land  to  enable  him  to  perform  the  feodal  and  6  Edw.  I.  anno  1278. 

services." — Com.  book  iii.ch.  10,  187  and  188.  §  Estrepamentum  —  from  the  Fr.   cstropier 

So  in  Pilfold's  case,  Rep.  x.  11.5,  it  is  said,  — mutilare. 
"  In  personal  actions  they  shall  declare  to  ||  Termes  de  la  Ley,  in  vac. ;  Tomlin's  Law 
damage,  because  they  shall  recover  damages  Dictionary,  in  vac.  In  New  York  (by  Rev. 
only  for  the  wrong  done  before  the  writ  Stat.  vol.  ii.  p.  260,  2d  ed.  §  18),  the  benefit 
brought,  and  shall  recover  no  damages  for  of  this  writ  is  given  by  a  provision  which, 
any  done  pending  the  writ ;  but  in  real  actions  where  an  action  is  brought  for  the  recovery  of 
the  demandant  shall  never  count  to  damages,  land,  or  the  possession  thereof,  authorizes  the 
because  he  is  to  recover  damages  pending  the  court  in  which  the  suit  is  pending,  to  make  an 
writ At  the  common  law,  before  the  order  restraining  the  defendant  from  the  corn- 
statute  of  Gloucester  (anno  6  E.  I.  c.  i.),  a  mission  of  waste. 


128  DAMAGES    IN    REAL    ACTIONS.  [CH.    IV. 

Advowsons.  —  In  regard  to  property  in  advowsons,  it  may  be 
briefly  noticed  that  no  damages  were  recoverable  at  the  com- 
mon law  in  an  assize  of  darrein  presentment,  nor  an  action  of 
quare  impecUt*  And  the  action  of  darrein  presentment  was  abol- 
ished in  England  by  the  statnte  of  limitation  of  actions,  to 
which  we  have  already  referred.  By  the  statute  of  2  West.,  c. 
5,  it  was  provided,  in  writs  of  quare  impedit  and  darrein  present- 
ment, if  a  disturbance  of  six  months  took  place,  that  damage 
should  Ije  awarded  to  two  years'  value  of  the  church ;  if  six 
months  did  not  pass,  but  the  presentment  were  deraigned  {i.  e. 
proved)  within  that  time,  damages  should  be  awarded  to  half  a 
year's  value  of  the  church.  If  a  more  particular  view  of  this 
branch  of  our  subject  is  desired  by  the  student,  he  will  find  it 
in  those  English  treatises  which  are  devoted  to  this  particular 
matter.  The  scope  of  this  work  does  not  allow  a  further  ex- 
amination of  it. 

Ejectment.  —  We  come,  then,  to  consider  the  law  of  damages 
in  the  actions  relating  to  real  property,  as  in  general  applica- 
tion in  the  Union ;  and  first,  of  Ejectment.^ 

"  Whilst  the  action  of  ejectment  remained  in  its  original 
state  t  and  the  ancient  practice  prevailed,  the  measure  of  dam- 
ages given  by  the  jury  when  the  plaintiff  recovered  his  term 
were  the  profits  of  the  land  accruing  during  the  tortious  hold- 
ing of  the  defendg,nt.  But  as  upon  the  introduction  of 
[119]  the  modern  system  the  proceedings  became  altogether 
fictitious,  and  the  plaintiff  merely  nominal,  the  damages 
assessed  became  nominal  also ;  and  they  have  not,  since  that 
time,  included  the  injury  sustained  by  the  claimant  from  the 
loss  of  his  possession."  -^ 

And  thus  it  has  been  decided  in  New  York,§  that  a  recovery 
of  nominal  damages  in  the  action  of  ejectment  is  no  bar  to  an 

*  Sayer,  35.  118,  "plaintiffs  in  ejectment  did  not  recover 

t  The  12th  chapter  of  Mr.  Maync's  valuable  the  term,  but  until  about  that  time  the  mesne 

work  on  damages  which  I  have  already  noticed,     profits  were  the  measure  of  damages 

discusses  the  heads  of  Ejectment,  Dower,  and  By  the  old  law  and  practice,  in  an  action  of 

Quare  Impedit.  ejectment,  as  I  before  said,  you  recovered  noth- 

\  Adams  on  Ejectment,  by  Tillinghast,  379.  ing  but  damages,  the  measure  whereof  was  the 

"  Before  the  time  of  Henry  VII.,"   said  Wil-  mesne  profits." 

mot,   C.  J.,  in  Goodtitle  v.   Tombs,  3   Wils.  §  Van  Alen  v.  Eogers,  1  J.  Cas.  281. 


1  It  is  held  in  North  Carolina,  that  in  ejectment  the  usual  and  proper  course  is  to  give  the 
plaintiff  nominal  damages,  leaving  the  real  damages  to  be  recovered  in  the  subsequent  cor- 
relative action  of  trespass  for  the  mesne  profits  ;  yet  that  it  would  not  be  error  to  direct,  that 
the  actual  damages  should  be  assessed  in  the  ejectment ;  the  division  of  actions  being  merely 
for  convenience.  Miller  v.  Melcher,  13  Ired.  (N.  C.)  Law,  439.  See  llyers  v.  Wheeler,  Hill 
&  D.  supp.  389. 


CH.    IV.]  EJECTMENT.  129 

action  for  the  mesne  profits,  and  that  it  is  necessary  to  enter  a 
remittitur  damna* 

In  Pennsylvania,  it  has  been  decided  that  the  damages  in 
ejectment  being  merely  nominal,  a  verdict  finding  for  the  plain- 
tiff without  assessing  damages  is  not  thereby  vitiated  ;t  and  the 
same  would  probably  be  the  rule  in  New  York.  In  some  of 
the  States,  the  course  of  proceedings  is,  however,  to  recover 
the  mesne  profits  in  the  action  of  ejectment,  or  in  an  action  of 
trespass  to  try  the  title ;  ^  and  in  those  States  the  rules  that  we 
shall  proceed  to  give,  in  regard  to  the  action  of  trespass  for 
mesne  profits,  will,  it  is  to  be  supposed,  govern  in  the  eject- 
ment suit,  or  in  the  action  of  trespass. t  ^ 

*  In  the  same    State,  by  a   statixtory  pro-  trespass  for  mesne  profits,  as  we  shall  sec  here- 

vision    (Rev.  Stat.  ii.  231,   2d  ed.   §   6),  the  after,  being  retained  where  the  defendant  in  the 

real  plaintiff  is  now  obliged  to  bring  the  suit  ejectment  sviit  is  a  tenant  or  mere  occupant, 

against   a   real  defendant  ;    but  the  damages  claiming  title  under  some  other  person,  who 

are  still   merely   nominal,  subject    to  the  ex-  defends  the  suit  in  his  name.     See  Leland  v. 

ception   hereafter   noticed.     The   seventh  sec-  Tousey,  6  Hill,  328.     The  Code  has  made  lit- 

tion  of  the  same  statute  requires  the  plaintiff  tie  change  in  regard  to  Ejectment.     Rogers  v. 

to  aver,  in  his  declaration,  that  the  defendant  Wing,  .5  How.  Pr,  50. 

"  unlawfully  withholds  from  the  plaintiff  the  t  Harvey  v.  Snow,  1  Yeates,  156  ;  Gough's 
possession  of  the  premises,  to  his  damage  any  Lessee  v.  Rinehart,  cited  1  Yeates,  157. 
nominal  sum  the  plaintiff'  shall  think  proper  J  Starr  v.  Pease,  8  Conn.  541.  So  in 
to  state."  In  Pennsylvania,  a  plaintiff"  in  Pennsylvania,  if  the  plaintiff  choose  to  pro- 
ejectment,  under  the  acts  of  1806  and  1807,  ceed  for  mesne  profits  in  ejectment  at  corn- 
may  recover  damages  and  costs,  although  he  mon  law,  he  may  do  so  on  giving  notice  to  the 
has  conveyed  the  title  to  a  third  person,  pend-  defendant  of  his  intentions.  Battin  v.  Bige- 
ing  the  suit.  —  Murray  w.  Garretson,  4  S.  &  R.  low,  1  Peters'  C.  C.  Rep.  452.  The  mesne 
130.  profits  may  be  recovered  in  ejectment  at  com- 

The  New  York  statiite   (Revised   Statutes,  mon  law  in  some  of  the  State  courts,  hy  way 

ii.    2d    ed.    23G,    §    44,  et  seq.)  has  also  pre-  of  damages ;    see  Boyd's    Lessee   v.    Cowan, 

scribed  the  mode  of  recovering  mesne  profits,  4    Dall.    138;    and   Dixon's   Lessee   v.    Hos- 

by  a  suggestion  on  the  record ;  the  action  of  ack,  Tharpe  v.  Bell,  Yeates  v.  Stewart,  cited 

1  In  New  York,  a  claim  for  mesne  profits  may  now  be  sued  in  an  action  imder  the 
Code  of  Procedure.  Holmes  v.  Davis,  19  N.  Y.  488.  In  Massachusetts  mesne  profits  are 
recovered  under  the  writ  of  entry  as  regulated  by  Revised  Statutes,  c.  101.  As  to  the  mode 
of  procedure  in  that  State,  see  Raymond  v.  Andrews,  6  Cush.  265  ;  Richards  v.  Randall, 
4  Gray,  53.  So  in  Massachusetts  damages  in  the  nature  of  mesne  profits  may  be  recovered 
by  the  landlord  during  the  period  of  a  tenant's  holding  over  after  the  termination  of  the  lease. 
Sargent  v.  Smith,  12  Gray  (Mass.)  426.  As  to  recovery  of  mesne  profits  in  a  possessory  action 
in  Louisiaiux,  see  Cliinn  v.  Blanchard,  6  La.  Ann.  66.  As  to  the  proper  mode  of  proceeding 
in  other  States,  see  the  following  cases  :  Pennsylvania,  Blight's  Ex'rs  v.  Ewing,  26  Penn.  St.  135  ; 
Maine,  Larrabee  v.  Lumbert,  36  Me.  440;  Georgia,  Shadwick  v.  McDonald,  15  Ga.  392  ; 
Arkansas,  Main  v.  Gordon,  7  Eng.  651  ;  Floyd  v.  Ricks,  14  Ark.  286;  Brock  v.  Smith,  Ibid. 
432  ;  jNIaryland,  Mitchell  v.  Mitchell,  1  Md.  58  ;   S.  C.  Il)id.  234. 

'•^  Where  a  plaintiff"  in  ejectment  was  in  possession  of  a  part  of  the  land  sued  for,  it  was 
held  erroneous  to  assess  damages  against  the  defendant  for  the  use  of  the  whole  tract.  Ellis 
V.  Jeans,  26  Cal.  272.  The  same  rule  is  applied  in  California  in  relation  to  damages  in  regard 
to  proceedings  for  forcible  entry  and  detainer.  Thompson  v.  Smith,  28  Cal.  527.  So  in  the 
same  State  where  a  plaintiff  in  ejectment  was  tenant  in  common  of  the  premises  withheld, 
with  one  not  a  party  to  the  suit,  he  was  entitled  to  recover  as  damages  for  the  detention,  a 
part  of  the  mesne  profits  only,  in  proportion  to  his  interest,  and  not  the  whole.  Clark  v. 
Huber,  20  Cal.  196.  But  in  "a  late  case  in  Missouri  where  the  plaintiff  and  defendant  were 
tenants  in  common,  the  court  said  that  the  actual  annual  value  of  the  property  with  interest 
was  the  measure  of  damages  in  ejectment,  and  denied  that  the  case  of  tenants  in  conmion 
formed  an  exception  to  the  general  rule.     Cutter  v.  Waddingham,  33  Missouri,  269. 

Where  an  action  for  the  recovery  of  real  property  in  the  nature  of  a  writ  of  right,  begun 
against  an  ancestor  who  died  during  the  pendency  of  his  suit,  the  heirs  were  substituted  as 
parties  after  his  death,  the  recovery  of  damages  for  rents  and  profits  against  them  was 
9 


130 


DAMAGES   IN   REAL   ACTIONS. 


[CH. 


IV. 


[120]       The  only  case  in  which  actual  damages  can  be  recov- 
ered in  the  ejectment  suit  itself  is  that  where  the  plain- 
tiff's title  expires  pending  the  action.^ 

So    in   New   York,*    where    the    plaintiff's   life    estate    had 


S.  C.  In  this  case  the  i)ractice  of  l)k'nd- 
ing  the  two  actions  is  ably  vindicated  by 
McKcan,  C.  J.  He  says,  "  1  shall  now 
briefly  consider  the  arcjumentum  ab  incon- 
venientt,  which  refers  bnt  to  a  single  instance, 
to  wit,  the  ditHeiilty  the  jury  may  labor  under 
in  deciding  on  the  titles  of  the  jiarties  to  the 
possession,  and  at  the  same  time  in  fixing  the 
value  of  the  mesne  profits  if  the  verdict  shall 
be  for  the  plaintiff.  There  can  be  no  great 
hardship  in  this.  In  actions  of  waste,  dowry, 
assize,  and  all  others  where  the  thing  itself, 
as  well  as  the  damages,  is  recovered,  the  jury 
are  liable  to  the  same  inconvenience  ;  nor  can 
I  perceive  any  great  perplexity  that  can 
arise  in  determining  the  rent  or  annual  value 
of  a  house  or  parcel  of  land,  where  complete 
evidence  is  given  of  it.  It  appears  to  me 
that  the  inconvenience  or  hardship  is  the 
other  way.  After  a  person  has  been  unlaw- 
fully kept  out  of  his  house  or  land  for  a  series 
of  years,  and  undergone  great  trouble  and 
expense  in  recovering  a  judgment  for  them, 
to  give  him  the  possession  merely,  without 
any  satisfaction  for  the  use  and  occupation 
pending  the  action,  does  not  seem  to  be  com- 
plete justice.  To  tell  him  '  You  must  sue  for 
the  mesne  profits  in  a  new  action,  fee  counsel, 
attend  the  courts,  produce  witnesses,  and 
have  a  new  trial  for  the  sole  purpose  of  fixing 
their  value,'  is  certainly  imposing  an  improper 
burden  upon  him  if  justice  can  be  had  in  a 
more  speedy,  cheap,  and  easy  way.  Taking 
a  verdict  for  the  amount  of  the  mesne  profits 
as  well  as  on  the  title  in  the  ejectment,  will 
prevent  this  circuity,  delay,  and  expense ; 
and  I  believe  it  to  be  equally  beneficial  for  the 
defendant  ;  for  if  on  the  trial  he  shows  a 
reasonable  ground  for  controverting  the  plain- 
tiff's claim,  or  a  specious  title  in  himself,  a 
jury  would  be  inclined  to  give  but  very  mod- 
erate damages  against  him  (of  which  the  jury 
in  the  action  for  the  mesne  profits  can  have  no 
consideration,  as  the  title  cannot  in  that  ac- 
tion be  again  gone  into),  and  he  would  cer- 
tainly be  saved  the  costs  and  expenses  of  the 
second  suit."  See,  also,  Joan  et  al.  v.  Shield's 
Lessee,  3  Har.  &  M'H.  7  ;  Gore's  Lessee  v. 
Worthington,  3  Har.  &  M'H.  96  ;  Little  v. 
Meachum,  1  Tyler,  438  ;  Longs treet  u.  Ketch- 
am,  1  Coxe,  170.  In  Denn  ex  dem.  Delatouche 
V.  Chubb,  1  Coxe,  406   (New  Jersey),  it  was 


ruled  in  ejectment  that  the  mesne  profits  might 
be  recovered,  and  that  in  assessing  them  the 
jury  might  include  all  the  plaintitt"'s  reasonable 
and  necessary  expenses,  such  as  a  fee  to  coun- 
sel. An  action  of  trespass  is  a  pro])er  mode  of 
recovering  mesne  profits  after  a  recovery  in 
ejectment  in  Pennsvlvania,  under  the  acts  of 
21st  March,  1806,  aiul  13th  April,  1807.  Os- 
bourn  v.  Osbourn,  11  Serg.  &  11.  5.5.  In  Ver- 
mont, also,  the  two  actions  have  been  blended. 
Walker  v.  Hitchcock,  19  Vt.  G34 ;  Beach  y. 
Beach,  20  Vt.  83  ;  Edgerton  v.  Clark,  20  Vt. 
264.  The  object  of  the  action  of  ejectment,  in 
that  State,  is  not  merely  to  recover  possession, 
but  also  to  settle  the  title  and  establish  the 
right  of  property.  Marvin  v.  Denifison,  20 
Vt.  662.  But  in  such  action  of  ejectment  the 
plaintiff  cannot,  with  a  view  to  increase  his 
claim  for  mesne  profits,  give  evidence  of  wan- 
ton acts  of  trespass,  injuring  the  intrinsic  value 
of  the  premises.  Walker  v.  Hitchcock,  19  Vt. 
634.  In  Alabama  the  action  of  trespass  to 
try  titles  has  been  siibstituted  for  the  actions 
of  ejectment  and  trespass  for  mesne  profits, 
and  performs  the  office  of  both ;  and,  as  in  the 
action  for  mesne  profits,  the  plain tifi' is  entitled 
to  recover  the  damages  he  has  sustained  by 
being  kept  out  of  possession  ;  and  these  are 
never  increased  or  diminished  by  the  profits 
acipured  by  the  defendant  from  his  occupancy. 
Bullock  V.  Wilson,  3  Porter,  382.  So  in  South 
Carolina,  the  mesne  profits  are  recoverable  in 
an  action  of  trespass  to  try  titles,  and  after 
that  action  is  had,  no  separate  action  lies  for 
the  recovery  of  mesne  profits.  Sumter  v.  Le- 
hie,  1  Treadway's  Com.  Rep.  102.  In  Mas- 
sachusetts, by  statute  it  is  provided,  that  if 
the  demandant  recovers  judgment  in  a  writ 
of  entry,  he  shall  also,  in  the  same  action,  re- 
cover damages  for  the  i-ents  and  jH'ofits  of  the 
premises.  Gen.  Stat.  c.  134,  §  13  ;  Washington 
Bank  v.  Brown,  2  Met.  293. 

*  Jackson  ex  dem.  Henderson  v.  Davenport, 
18  J.  11.  29.5  and  302.  This  was  before  the 
revision  of  the  statutes ;  the  case  is  now  cov- 
ered by  the  statutory  provision  which  enacts 
(Rev.  Stat.  vol.  ii. '234,  2d  ed.  §  31),  "If 
the  right  or  title  of  a  plaintiff  in  ejectment 
expire  after  the  commencement  of  a  suit,  but 
before  trial,  the  verdict  shall  be  returned  ac- 
cording to  the  fact,  and  judgment  shall  be 
entered  that  he  recover  his  damages  by  rea- 


limited  to  the  period  of  their  possession  of  the  property.  Cavender  v.  Smith,  8  Iowa,  360. 
So  in  ejectment  brought  by  devisees,  their  recovery  of  the  rents  and  profits  is  limited  to  the 
time  when  their  title  to  them  accrued.  All  claims  for  damage  to  the  real  estate  and  for  its 
rents  and  profits  prior  to  the  testator's  death  go  to  his  personal  representatives.  Hotchkiss 
V.  Auburn  and  Rochester  R.  R.  Co.  36  Barl).  600. 

1  The  attempt  to  assess  in  any  action  of  ejectment  the  damages  due  from  one  party  to  the 
other  for  the  breach  of  a  contract  which  is  not  the  foundation  of  the  title  to  the  property,  is 
"  novel,  dangerous,  impracticable,  and  erroneous."    Per  Strong,  J.,  Gile  v.  Gile,  37  Penn.  312. 


CH.    IV.]  IMPROVEMENTS.  131 

terminated  before  trial,  the  Supreme  Court  said,  "  The  [121] 
plaintiff  has  no  title  to  turn  the  defendant  out  of  pos- 
session, but  he  has  a  title  to  the  mesne  profits  and  costs  of  this 
suit,  and  must,  therefore,  have  judgment  to  enalde  him  to  re- 
cover them."  *  So  in  South  Carolina,  in  the  action  of  trespass 
to  try  titles :  "  If  a  term  expire  pending  an  action,  the  party 
shall  not  have  possession,  but  he  may  have  damages."  f 

Improvements.  —  In  regard  to  improvements  made  on  the 
land  while  out  of  the  possession  of  the  rightful  owner,  the 
general  principle  of  the  English  law,  as  well  as  our  own,  is, 
that  the  owner  recovers  his  land  in  ejectment  without  being 
subjected  to  the  condition  of  paying  for  improvements  which 
may  have  been  made  upon  it  by  any  intruder,  or  occupant 
without  title.  The  improvements  are  considered  as  annexed 
to  the  freehold,  and  pass  with  the  recovery.  Every  possessor 
makes  such  improvements  at  his  peril,  and  whether  acting  on 
an  honest  belief  in  his  title  or  without  color  of  right,  the  party 
who  is  ousted  loses  all  benefit  of  his  expenditures.^:  ^ 

The  civil  law,  however,  as  we  shall  see,  draws  a  clear  line  of 
distinction  between  the  possessor  honce  fidei  and  malcE  fidei ;  and 
the  latter  only  loses  the  benefit  of  his  improvements.  This 
too  is  the  case  in  Louisiana.§ 

And  this  distinction  has  been  introduced,  to  a  certain 
extent,  into  the  rules  which  govern  the  subject  of  mesne   [122] 
profits.     To  this  head  we  now  turn. 

son  of  the  withholding  of  the  premises  by  the  Camp.  447  ;  Thnistout  v.  Gvcjet  al.  2  Strange, 

defendant,  to  be  assessed,  and  that  as  to  the  1056  ;  Adams  on  Ejeetment,  228. 

premises   claimed,    the   defendant  go   thereof  t  Stockdale  i'.  Young,  3  Strobhart,  501. 

without  day."  %  Kent's  Comm.  Lee.  34,  vol.  ii.  335. 

*  Wilkes  V.  Lion,  2  Cowen,  333,  and  Robin-  §  The  Civil  Code  of  Louisiana,  Art.  500, 

son   V.    Campbell,  3   Wheat.    212 ;    and   this  provides,   "  If   the  work  has  been  done  by  a 

seems   the   rule   in   Pennsylvania;    when   the  third   person,   evicted   but   not   sentenced    to 

term  of  the  plaintiff  expires  before  the  trial,  make  restitution  of  the  fruits  (mesne  profits), 

although  he  cannot  recover  the  possession,  yet  because  such  person  possessed   bond  Jide,  the 

he  may  proceed   for  damages  for  the  trespass  owner  shall  not  have  a  right   to  demand  the 

and  for  mesne  profits ;  Brown's  Lessee  v.  Gal-  demolition  of  the  works,  but  shall  have  his 

loway,  1   Peters'  C.  C.  Rep.  291,  299.     And  choice    either  to   reimburse   the  value  of  the 

the  English  rule  is  the  same.     Runnington  on  materials  and  the  price  of  workmanslii]>,  or  to 

Ejectment,  404  ;  England  v-  Slade,  4   T.   R.  reimburse  a  sum  equal  to  the  enhanced  value 

682,   683;  Co.  Litt.  285  a;  Doe  v.  Bluck,  3  of  the  soil."    See  Stanbrough  y.  Barnes,  2  La. 

Ann.  376. 


1  The  same  rule  holds  in  an  action  of  trespass  by  a  tenant  against  his  landlord  to  recover 
damages  for  being  ejected  before  the  end  of  his  lease.     Schlemmer  v.  North,  32  Mo.  206. 

One  who  forcibly  disseizes  another  and  imiirovcs  his  land,  can  have  no  claim  for  the  value 
of  his  improvements,  because  he  has  no  right  to  improve  another's  property  against  the 
owner's  will.  But  a  bona  fide  occujiant  is  entitled  to  have  them  taken  into  account  in  ascer- 
taining whether  the  owner  of  the  land  has  sustained  damage  or  not,  both  in  the  case  where 
such  improvements  were  made  by  the  occupant  and  by  one  whose  title  he  has  purchased. 
Morrison  v.  Robinson,  31  Penn.  456. 


132  DAMAGES    IN    REAL    ACTIONS.  [cil.    IV. 

As  nominal  damages  only  were  given  in  ejectment,  it  was 
necessary  to  provide  another  remedy  for  the  claimant  for  the 
injury  sustahied  by  him  from  the  loss  of  his  possession;  and 
this  was  effected  by  a  new  application  of  the  common  action  of 
trespass  vi  ct  armis,  generally  termed  an  action  for  mesne  profits, 
in  which  action  the  plaintiff  complains  of  his  ouster  and  loss 
of  possession,  states  the  time  during  which  the  defendant  (the 
beneficial  occupant)  held  the  lands,  and  took  the  rents  and 
profits,  and  prays  judgment  for  the  damages  which  he,  as 
rightful  owner,  has  thereby  sustained.* 

Mesne  Profits.  —  According  to  the  division  adopted  in  this 
treatise,  the  subject  of  mesne  profits,  as  it  does  not  concern  the 
recovery  of  real  property,  would  fdl  under  the  head  of  tres- 
pass ;  but  as  this  action  is  directly  auxiliary  or  subsidiary  to 
that  of  ejectment,  and  in  many  States  of  the  Union  actually 
blended  with  it,  it  seems  properly  to  be  introduced  here. 

The  mesne  or  intermediate  profits  of  lands  are  those  re- 
ceived while  the  property  is  withheld  from  its  rightful  occu- 
pant ;  and  when  he  recovers  possession,  the  right  to  the  mesne 
profits  follows  his  recovery.  By  the  Roman  law,  the  bo7id  fide 
possessor  of  land  held  without  title,  was  not  liable  to  the  legit- 
imate owner  for  the  friidus,  or  mesne  profits.  Si  quis  a  non 
domino  quem  dominum  esse  crediderit,  bona  fide  fundum  eme- 
rit,  vel  ex  donatione,  aliave  qualibet  justa  causa,  aeque  bona  fide 
acceperit,  naturali  rationi  placuit  fructus  quos  percepit  ejus  esse 
pro  cultura  et  cura,  Et  ideo,  si  postea  dominus  supervenerit  et 
fundum  vindicet,  de  fructibus  ab  eo  consumtis  agere  non  po- 
test.f  This  is  also  the  rule  of  the  Scotch  %  and  of  the  French 
system ;  §  and  the  same  principle  prevails  in  Louisiana, 
[123]  the  jurisprudence  of  which  State  has  been  largely  af- 
fected by  the  liberal  reasoning  and  enlightened  equity  of 
the  civil  law.||     But  the  common  law  makes  no  such  distinc- 

*  Adams  on  Ejectment,  by  Tillinghast,  ch.  The  occupant  is  retjarded  as  a  bond  fide  pos- 

xiv.  379,  380.  sessor  when   he  holds  as  proprietor  under  a 

t  Instit.  de  Rer.  Divisione,  lib.  ii.   tit.    1,  derivative  title,  of  the  defect  of  which  he  is 

sec.  3.5.  ignorant.     The  occupant  ceases  to  be  so  re- 

}  Kairas'  Equity,  book  iii.  ch.  i.  garded  as  soon  as  the  defect  of  title  is  known 

§  Domat,  I.  272,  book  iii.  tit.  v.  §  3.  There  to  him." 
were,  however,  before  the  Revolution,  several  Le  simple  possesseur  no  fait  les  fruits  siens 
excei)tions  to  the  general  principle  in  France,  que  dans  le  cas  oh  il  possede  de  bonne  foi; 
which  will  be  found  noticed  by  Touillier,  in  dans  le  cas  contrarie,  il  est  tenu  de  rendre  les 
his  admirable  work,  vol.  iv.  327,  liv.  iii.  tit.  i.  produits  avec  la  chose  an  proprie'taire  qui  la 
ch.  iv.  §  307,  et  seq.  The  matter  has  been  put  revendique.  Le  possesseur  est  de  bonne  foi 
at  rest  by  the  Code  Napoleon,  which  declares,  quand  il  possede  comme  proprie'taire  en  vertu 
Ai-t.  549,  "The  occupant  makes  the  mesne  d'un  titre  translatifde  propriete' dont  il  ignore 
protits  his  own  only  in  case  he  is  a  bond  fide  les  vices.  II  cesse  d'etre  de  bonne  foi  du  mo- 
possessor;  if  otherwise,  he  must  return  the  ment  ou  ces  vices  lui  sont  connus. 
profits  with  the  thing  itself  to  the  true  owner.  ||  The  Civil  Code  of  Louisiana  asserts,  Art. 


CH.    IV.]  MESNE    PROFITS.  133 

tion,  except  as  we  shall  now  see  with  regard  to  nnprovements 
put  on  the  premises ;  it  looks  only  to  the  strict  legal  title,  and 
the  right  to  recover  the  mesne  profits  follows  in  all  cases  upon 
a  recovery  in  ejectment.*  The  rule  of  damages  in  this  ancil- 
lary action  we  have  now  to  consider.  And  the  remarks  which 
we  shall  make,  and  the  authorities  cited,  will  apply  to  the  action 
for  trespass  to  try  titles  in  those  States  where  by  statute  this 
remedy  has  ■  been  made  to  assume  the  functions  of  the  former 
actions  of  ejectment  and  trespass  for  mesne  profits,  and  also 
to  the  action  of  ejectment  in  those  States  where  the  plaintiff 
is  allowed  to  recover  the  rents  and  profits  in  that  proceeding. 
In  an  action  for  mesne  profits,  the  plaintiff,  as  a  general  rule, 
recovers  the  annual  value  of  the  land^  from  the  time  of  the 
accruing  of  his  title,  or  from  the  time  of  such  title  accrued  as 
laid  in  the  declaration  in  the  ejectment  suit,  if  he  relies  on  the 
record  in  that  suit  to  establish  his  recovery.  But,  "  The  jury 
are  not  confined  in  their  verdict  to  the  mere  rent  of  the  prem- 
ises, but  may  give  such  extra  damages  as  they  think  the  partic- 
ular circumstances  of  the  case  demand."  f  So  in  an  early  case 
in  England,  it  was  said,t  "  The  plaintiff  is  not  confined  in  this  case 
to  the  very  mense  profits  only,  but  he  may  recover  for  his 
trouble.  I  have  known  four  times  the  value  of  the  mesne  [124] 
profits  given  by  a  jury  in  this  sort  of  action  of  trespass ; 
if  it  were  not  so,  sometimes  complete  justice  could  not  be  done 
to  the  party  injured."  ^ 

494,  "  The  produce  of  the  thing  does  not  be-  these  defects  are  made  known  to  him,  or  are 
long-  to  tlie  simple  possessor,  and  must  be  re-  declared  to  him  by  a  suit  instituted  for  the  re- 
turned with  the  thing  to  the  owner  who  claims  covery  of  the  same  by  the  proprietor." 
the  same,  unless   the  possessor   hold   it  boiid  *  Green  v.  Biddle,  8  Wheat.  1   and  80.     In 
fide."     Art.  495  :  "  He  is  a  to«a  ^/zV/e  possessor  North    Carolina,    see   Camp  y.  Homesley,   II 
who  possesses  as  owner  by  virtue  of  an  act  Iredell,  212. 
sufficient  in  terms  to   transfer  property,   the  t  Adams  on  Ejectment,  391. 
defects  of  which  he  was  ignorant  of;  he  ceases  J  Goodtitle  v.  Tombs,  3  Wils.  118. 
to  be  a  bona  fide  possessor  from  the  moment 

1  The  plaintiff's  recovery  in  this  action  should  be  measured  by  his  actual  interest,  and  the 
wrong-doer  should  not  ordinarily  pay  more  than  the  injured  party  has  suffered,  except  where 
the  plaintiff,  as  owner,  necessarily  gets  the  benefit  of  any  accretions  or  profits  resulting  from 
the  trespasser's  acts.  And  where  the  plaintiff  is  a  lessee,  or  the  representative  of  a  lessee  of 
an  unexpired  term,  such  recoverable  interest  is  the  value  of  the  lease  for  the  residue  of  the 
term.  He  is  not  entitled  to  the  full  value,  as  would  be  the  case  if  he  were  the  owner.  And 
if  the  defendant,  as  owner  and  lessee,  have  an  interest  in  the  profits  of  the  use  of  the  prem- 
ises, that  circumstance  should  also  be  taken  into  account.  The  authorities  which  hold  that  a 
trespasser,  carrying  on  another's  manufacture,  should  be  denied  an  allowance  for  so  doing,  or 
who  expends  money  on  another's  chattels,  does  not  thereby  acquire  a  property  in  them,  have 
no  application  to  such  a  case.  Holmes  v.  Davis,  19  N.  Y.  488.  See  Davis  v.  Tallcot,  14  Barb. 
(N.  Y.)  611,  reversed  on  another  point,  12  N.  Y.  184;  Sheldon  v.  Van  Slyke,  16  Barb.  26. 
And  in  Georgia,  in  an  action  for  mesne  profits  of  a  ferry  landing,  the  receipts  of  the  ferry, 
deducting  expenses,  were  held  to  be  the  damages  recoverable ;  and  it  was  further  held,  that 
if  the  profits  had  been  increased  by  improvements,  the  jury  might  deduct  for  the  improve- 
ments.    Averett  v.  Brady,  20  Ga.  523. 

^  But  where,  in  an  action  of  trespass  by  a  tenant  against  his  landlord,  the  premises  had  been 
in  the  possession  of  sub-tenants,  who  before  the  end  of  the  term  left  them  for  a  consideration 
paid  by  the  defendant,  who  thereupon  removed  the  houses  with  a  view  to  rebuilding,  the 


134  DAMAGES    IN    REAL    ACTIONS.  [CH.    IV. 

So  where*  an  action  of  trespass  for  mense  profits  was  brought, 
and  bankruptcy  was  pleaded.  On  demurrer  it  was  admitted  that 
bankruptcy  was  no  bar  to  demands  for  torts  in  general,  Ijut  it 
was  insisted  that  the  claim  here  was  in  substance  for  the  annual 
value  of  the  land.  But  judgment  was  given  for  the  plaintiff, 
Judge  Mansfield  saying,  "The  plaintiff  goes  for  the  whole  dam- 
ages occasioned  by  the  tort ; "  and  Mr.  J.  Buller  said,  "  The 
damages  here  are  as  uncertain  as  in  an  action  of  assault." 

'•  There  are  certainly  some  cases,"  says  Mr.  Runnington,! 
"in  which  the  jury  are  not  bound  by  the  amount  of  the  rent,  but 
may  give  extra  damages,  and  after  judgment  by  default  the  costs 
in  ejectment  are  recoverable,  and  are  therefore  usually  declared 
for  as  damages  in  the  action  for  mesne  profits."  And  so  the 
Supreme  Court  of  New  York  :  t  "  The  damages  in  the  action  for 
m.esne  profits  are  not  limited  to  the  rent.  Extra  damages  may 
be  given."  "As  to  the  amount  of  damages,"  said  Washington, 
J.,  on  the  Pennsylvania  Circuit,  §  "the  jury  are  the  only  proper 
judges  ;  there  is  no  general  rule,  and  the  quantum  depends  on 
the  circumstances  of  the  case." 

And  so  in  Pennsylvania,  the  jury  were  told  at  Nisi  Prius,  that 
they  might  give  interest  from  the  time  of  the  commencement 
of  the  suit ;  and  on  motion  for  a  new  trial,  the  court  said,  "  As 
to  the  measure  of  the  damages,  the  court  gave  in  this  respect 
as  favorable  a  construction  as  the  case  could  possibly  admit  of 
It  would  not  have  been  error  in  the  court  to  have  left  it  to  the 
discretion  of  the  jury  to  have  allowed  the  plaintiff  more  than 
interest  upon  the  amount  of  the  mesne  profits.  The  jury  are 
not  confined  in  their  verdict  to  the  mere  rent  of  the  premises, 
although  the  action  is  said  to  be  brought  to  recover  the  rents 
and  profits  of  the  estate ;  but  may  give  such  extra  damages  as 
they  may  think  the  particular  circumstances  of  the  case  de- 
mand.|l 

These  dicta  are  evidently  very  loose,  and  in  Penn- 
[125]  sylvania  an  effort  has  been  made  to  lay  down  some- 
thing like  a  clear  rule.  So,  where  the  judge  charged 
that  the  plaintiff  might  recover  the  value  of  the  property  with 
interest,  together  with  the  costs  and  expenses  of  prosecuting 
the  claim,  and  such  other  damages  as  the  jury  might  think  the 
plaintiff  entitled  to  recover,  the  verdict  was  set  aside.^ 

*  Goodtitle  v.  North,  2  Doug.  504.  ||  Drexel  v.  Man,  2  Barr,  271. 

t  Ejectment,  439.  1  Alexander  v.  Herr,  11  Penn.  5.37;  Good 

t  Dewey  v.  Osborne,  4  Cowen,  329.  v.  Mylin,  8  Barr,  51. 

§  Brown's  Lessee  v.  Galloway,  Peters'  C.  C. 
R.  291. 

measure  of  the  tenants'  damages  was  held  to  be  the  rent  or  value  of  the  use  of  the  pi-emises 
for  the  rest  of  the  term  only.     Schlemmer  v.  North,  32  Missouri,  206. 


CH.    IV.]  GENERAL   RULE.  135 

General  Rule. — As  a  general  rule,  however,  it  may  be  said 
that  the  actual  annual  value  of  the  property,  together  with  the 
costs  of  the  ejectment  suit,  will  furnish  the  measure  of  dam- 
ages. "  The  action  for  mesne  profits,  though  in  form  it  is  an 
action  of  trespass,  in  effect  is  to  recover  the  rent,"  *  said  Ashurst, 
J.  And  in  New  York,t  interest  has  been  allowed  upon  the 
rents.  The  court  said,  "As  rents  in  the  city  of  New  York, 
where  the  premises  are  situated,  are  payable  at  the  usual  quarter 
days  (1  R.  S.,  p.  736),  we  think  the  referees,  in  ascertaining  the 
value  of  the  mesne  profits,  were  warranted  in  adding  to  the 
amount  of  rent  the  interest  quarterly.  So  much  the  plaintiff 
has  lost  and  the  defendant  enjoyed,  by  means  of  the  wrongful 
possession." 

And  the  costs  of  the  ejectment  suit  are  also  recoverable  in 
this  action.!^  But  where  the  ejectment  suit  has  been  defended, 
and  the  plaintiff's  costs  taxed,  he  cannot  recover  beyond  those 
taxed  costs.§  So  in  the  King's  Bench,||  the  plaintiff  was  allowed 
to  recover,  by  way  of  damages,  the  costs  incurred  by  him  in  a 
court  of  error  in  reversing  a  judgment  in  ejectment  obtained  in 
the  first  place  by  the  defendant ;  and  Lord  Tenterden  said, 
"  There  can  be  no  doubt  that  the  court  of  error  could  not  award 
costs  to  the  plaintiff.  But  the  expenses  incurred  in  the  court  of 
error  were  part  of  the  damages  sustained  by  the  plaintiff;  and  I 
think  that  the  jury  might  reasonably  consider  the  costs  between 
attorney  and  client,  as  the  measure  of  the  damages  which  he  had 
sustained."  ^ 

The  same  rule  as  to  allowing  the  costs  of  the  eject- 
ment which  was  laid  down  by  Lord  Mansfield,  has  been  [126] 
declared  in  New  York.**     But  in  a  case  where  the  costs 
were  not  included  in  the  verdict,  the  Court  of  King's  Bench 
refused  to  assist  the  plaintiff.ff 

Where  a  recovery  in  ejectment  is  effected  on  the  demise  of 
two  only,  out  of  several  tenants,  and  suit  is  afterwards  brought 
for  mesne  profits,  none  but  the  shares  of  the  mesne  profits  to 
which  those  two  tenants  are  entitled,  can  be  recovered.^! 

Equitable  Defenses  Allowed.  —  When,  on  the  other  hand, 

*  Uttei-son  V.  Vernon,  3  T.  R.  539-547.  IF  See   also,   Symonds  v.  Page,  1    Cr.  &  J. 

t  Jackson  v.  Wood,  24  Wendell,  443.  29,  and  Doe  v.  Hare,  2  Dowl.  P.  C.  245. 

t  Aslin  V.  Parkin,  2  Burr.  665  ;  Saycr,  88.  **  Baron  v.  Abecl,  3  J.  R.  481. 

§  Doe  V.  Davis,  1   Esp.  358,  and  Brooke  v.        tt  Gulliver  v.  Drinkwater,  2  T.  R.  261. 
Bridges,  7  J.  B.  Moore,  471  ;  Doe  v.  Filliter,         JJ  Holdfast  v.  Shephard,  9  IredcU  (N.  C. 

13  Mces.  &  Wels.  47.  222. 

II  NoweU  V.  Roake,  7  B.  &  Cres.  404. 

1  But  not  counsel  fees  paid  by  the  plaintiff  in  the  ejectment  suit.  White  v.  Clack,  2  Swan 
(Tenn.),  230. 


136  DAMAGES    IN   REAL    ACTIONS.  [CH.   IV. 

we  come  to  consider  the  limitations  of  relief  in  this  proceeding, 
we  find  it  everywhere  held  to  be  a  liberal  and  equitable  action, 
and  one  which  will  allow  of  every  equitable  kind  of  defense  * 
Among  the  most  important  considerations  that  a  defendant  can 
urge,  in  answer  to  the  claim  for  the  rents  and  profits  received  by 
him,  is  that  which  the  common  law  has,  to  a  certain  extent, 
adopted  from  the  civil  law,  and  which  grows  out  of  permanent 
improvements  made  by  him  upon  the  premises  during  his  occu- 
pancy. We  have  already  seen  the  lenity  with  which  the  civil 
law  treated  the  occupant  in  good  faith  ;  and  the  reasoning  of  the 
civilians  has  so  far  obtained  in  the  tribunals  of  our  law,  that  a 
bond  fide  occupant  of  lands  is  allowed  to  mitigate  the  damages  in 
the  action  brought  by  the  rightful  owner,  by  offsetting  the  value 
of  his  permanent  improvements  made  in  good  faith,  to  the 
extent  of  the  rent  and  profits  claimed.  This  principle  has  been 
fully  declared  by  the  Supreme  Court  of  the  United  States,!^  in  a 
case  in  which  the  distinction  between  a  possessor  honm  fidei  and 
malce  fidei  was  distinctly  recognized,  the  former  being  one  who 
not  only  supposes  himself  to  be  the  true  proprietor  of  the  land, 
but  who  is  ignorant  that  his  title  is  contested  by  any  person 
claiming  a  better  right  to  it.$^     The  Supreme  Court  of  the  State 

of  New  York  went  still  further,  and  allowed  improve- 
[127]  ments  made  after  suit  brought  by  the  legal  owner,  and 

during  its  pendency,  to  be  given  in  evidence  for  the  pur- 
pose of  mitigating  damages.  The  distinction  between  improve- 
ments made  before  and  after  notice  of  suit  brought,  does  not, 
however,  appear  to  have  been  clearly  taken  ;  and  the  court  rely 
on  the  case  above  cited  in  the  Supreme  Court  of  the  United 
States,  where  the  point  was  not  even  raised. 

In  a  case  in  Pennsylvania,§  the  general  principle  has  been 
recognized ;  but  Washington,  J.,  charged  the  jury  that,  as  the 
plaintiff",  having  proved  no  title  prior  to  the  time  of  the  devise 
in  the  ejectment  suit,  could  recover  damages  only  subsequent  to 
that  period,  the  value  of  the  defendant's  improvements  ought 
first  to  be  set  off"  against  the  mesne  profits  received  by  him  prior 
to  that  time,  and  after  the  plaintiff^'s  title  accrued,  the  balance 
to  be  deducted  from  the  rents  and  profits  to  which  the  plaintiff" 
was  entitled  subsequent  to  the  devise.     The  case  does  not  seem 

*  Murray  v.  Gouverneur,  2  J.  Cas.  438.  Boyd,  1  Story's  Rep.  479  ;  Jackson  v.  Loomis, 

t  Green  v.  Riddle,  8  Wheaton,  1.  4  Cow.  168. 

J  See  also,  to   this   same  point.   Bright  v.         §  Hylton  v.  Rrown,  Wash.  C.  C.  R.  165. 


1  It  was  also  recognized  in  Gill  v.  Patten,  1  Cr.  C.  C.  R.  465.     And  see  Averett  i;.  Brady, 
20  Ga.  523. 

2  So  in  Dothage  v.  Stuart,  35  Mo.  251. 


CH. 


IV.] 


ALLOWANCE   FOR   IMPROVEMENTS. 


137 


clear ;  because  it  is  expressly  stated  that  the  plaintiff  had  proved 
no  title  except  under  the  ejectment  recovery,  and  yet  some  other 
period  is  spoken  of  as  that  when  the  plaintifi"s  title  accrued  *  ^ 

Statute  of  Limitations.  —  As  to  the  time  for  which  the 
defendant  is  liable,  each  occupant  is  answerable  for  the  [128] 
time  he  has  been  in  possession.!     This  right,  however, 
extends  back  for  six  years  only,  if  the  statute  of  limitations  be 
pleaded.^  ^ 

Confusion  from  Forms  of  Action.  —  It  is  plain  that  the  meas- 
ure of  compensation  which  we  are  now  considering,  has  been 


*  In  the  ancient  real  actions,  the  improve- 
ments of  the  tenant  appear  to  have  ahvaj-s 
been  the  snbjcct  of  set-off  or  recoupment. 
"  DamaffC  of  40s.  and  no  more  was  found  by 
the  assize,  because  the  land  sown  and  the 
house  well  amended,  and  so  recouped  the  dam- 
age." Viner's  Abr.  tit.  Discount,  whei'e  see 
many  other  cases  in  the  same  connection.  See 
also,  Coulter's  case  (.5  Co.  30),  and  Bro.  tit. 
Damages.  Lord  Kaims  says,  book  iii.  ch.  i. 
276,  "  It  is  a  maxim  suggested  by  nature, 
that  reparations  and  meliorations  bestowed 
upon  a  house  or  upon  land,  ought  to  be  de- 
fi'ayed  out  of  the  rents  ; "  and  so  says  the 
Roman  law.  Sumptus  in  prredium  quod  alie- 
num  esse  apparuit,  a  bona  fide  possessore 
facti,  neque  ab  eo  qui  pri^dium  donavit,  neque 
a  domino  peti  posssunt,  verum  exceptione  doli 
posita,  per  officium  judicis  £equitatis  ratione 
servantur,  scilicet  si  fructuum  ante  litem  con- 
testatam  pcrceptorum  summam  excedunt. 
Etenim,  admissa  compensationc,  superfluum 
sumptum  meliore  priedio  facto  dominus  resti- 
tuere  cogitur.     L.  48,  de  Rei  Vindicatione. 

All  this,  however,  applies  to  the  case  of  a 
bond  Jide  possessor,  or  one  without  notice,  and 
does  not  touch  that  of  a  person  who,  being 
apprised  of  a  claim  of  better  title  and  with 
full  notice,  and  even  after  suit  brought,  goes 
on  to  apply  the  mesne  pi'ofits  to  permanent 
improvements.  It  seems  very  dangerous  to 
make  a  compulsory  allowance  for  such  an  ap- 
plication of  funds  to  property  which  the  de- 
fendant is  fully  apprised  Avill  be  claimed  by 
another.  Such  expenditures  should  be  made, 
it  would  seem,  at   the   occupant's   peril.     In 


Kentucky  the  occupant  is  allowed  for  last- 
ing and  valuable  improvements.  Oldham  j;. 
Woods,  3  Monroe,  47.  In  Ohio,  in  trespass 
for  mesne  profits,  as  a  general  rule,  valuable 
and  lasting  improvements  may  be  set-off 
against  rents.  Worthington  v.  Young,  8 
Ohio,  401. 

t  Ilolcomb  V.  Rawlyns,  Cro.  Eliz.  540  ;  Mor- 
gan V.  Varick,  8  Wendell,  58^. 

t  Bull,  N.  P.  568  ;  Saund.  Pleading  and 
Ev.  668.  But  the  Revised  Statutes  of  New 
York  have  done  away  the  necessity  of  plead- 
ing this  statute. 

By  the  Revised  Statutes  of  New  York,  vol. 
ii.  p.  236,  it  is  declared,  that  instead  of  the 
action  for  mesne  profits  heretofore  used,  the 
plaintiff  seeking  to  recover  such  damages  shall, 
within  one  year  after  docketing  his  judgment, 
make  and  file  a  suggestion  of  the  claim  ;  and 
the  recovery  is  limited  to  six  years,  whether  the 
statute  of  limitations  be  pleaded  or  not.  Jack- 
son ex  dem.  Genet  v.  VVood,  24  Wend.  443. 
This  provision,  however,  has  been  declared 
not  to  abolish  the  action  of  trespass  for  mesne 
profits  except  as  against  the  defendant  in  the 
ejectment  suit ;  and  wherever  the  defendant  is 
a  merely  nominal  party,  or  if  it  is  necessary  to 
join  others,  or  if  possession  is  obtained  without 
suit  or  judgment,  the  old  action  of  trespass 
must  still  be  resorted  to.  Leland  v.  Tousey, 
6  Hill,  328. 

As  to  the  rule  of  damages  in  this  action  in 
New  Jersey,  See  Dcnn  v.  Chubb,  1  Coxe,  466  ; 
in  Pennsvlvania,  Huston  v.  Wickersham,  2 
Watts  &  Serg.  308  ;  and  in  Maryland,  Gill  v. 
Cole,  1  Har.  &.  J.  403. 


^  The  value  of  permanent  improvements  is  also  allowed  in  this  action,  where  they  were 
erected,  not  by  the  defendant,  but  by  one  whose  title  he  had  purchased.  Morrison  v.  Robin- 
son, 31  Penn.St.  456.  And  to  entitle  the  defendants  to  a  deduction  of  the  value  of  their  im- 
provements, it  must  appear  that  they  held  under  color  of  title  adversely  to  the  claims  of  the 
plaintiff  in  good  faith.     White  v.  Moses,  21  Cal.  34. 

'^  In  New  York,  on  a  suggestion  for  mesne  profits,  after  a  recovery  in  ejectment,  the  plain- 
tiff can  recover  for  the  six  years  next  before  the  filing  of  the  suggestion  only.  He  cannot 
elect  to  recover  for  the  six  years  next  succeeding  the  commencement  of  the  ejectment  suit. 
Budd  V.  Walker,  9  Barb.  493.  And  a  defendant  cannot  be  charged  in  damages  for  a  period 
when  he  was  not  in  possession  in  fact  or  in  judgment  of  law.  New  York  Supreme  Court,  1844, 
Hill  &  D.  supp.  389.  In  Indiana  it  is  held  that  the  recovery  may  be  down  to  the  time  of  the 
trial,  if  the  defendant  remains  in  possession.    Pendergast  v.  McCaslin,  2  Ind.  87. 


138  DAMAGES    IN    REAL    ACTIONS.  [cil.    IV. 

involved  in  confusion  by  the  technical  character  of  our  forms 
of  action.  "  The  dicta  on  the  subject,"  says  Gibson,  C.  J.,  in 
Pennsylvania,  "  seem  to  have  been  predicated  by  judges  who 
had  no  precise  idea  of  it ;  for  they  have  not  defined  it  by  any 
landmarks."  *  The  action  of  trespass,  being  one  of  tort,  admits 
of  any  evidence  in  aggravation ;  and  therefore  in  one  sense  it 
is  correct  to  say,  that  the  damages  in  this  proceeding  are  en- 
tirely at  large  and  under  the  control  of  the  jury.  But,  on  the 
other  hand,  there  is  nothing  necessarily  in  the  action  of  the 
nature  of  a  trespass.  The  property  may  have  been  withheld, 
and  the  rents  received,  in  entire  good  faith.  In  this  case  the 
allegations  of  force,  etc.,  are  purely  fictitious  ;  and  it  certainly 
never  would  be  tolerated,  on  such  facts,  that  the  jury  should 
give  any  damages  beyond  the  actual  value  of  the  income. 

It  may,  then,  be  said  as  long  as  the  technical  form  of  action 
is  maintained,  that  where  circumstances  of  malicious  aggrava- 
tion are  proved,  such,  for  instance,  as  a  willful  holding  for  the 
purpose  of  oppression,  the  jury  may  give  vindictive  or  exem- 
plary damages  ;  but  that  where  no  such  facts  are  shown,  they 
are  limited  to  the  actual  annual  value  of  the  property,  with  in- 
terest thereon,  and  the  costs  of  the  ejectment  suit. 

[129]      Dower.  —  We  come  now  to  the  subject  of  Doiver. 

Where  the  husband  of  a  woman  is  seized  of  an  estate 
of  inheritance  and  dies,  the  wife  shall  have  the  third  part  of  all 
the  lands  and  tenements  whereof  he  was  seized  at  any  time 
during  the  coverture,  to  hold  for  the  term  of  her  natural  life.f 
"  A  dowress,"  says  Mr.  Park,$  "  having  no  right  of  entry  till 
her  dower  is  assigned,  cannot,  if  an  assignment  is  refused,  main- 
tain a  possessory  action."  In  England  the  legal  remedy  to  en- 
force an  assignment  of  dower  is  by  a  writ  of  dower,  iinde  nihil 
Jiabet,  or  by  a  writ  of  right  of  dower,  upon  which,  if  she  obtains 
judgment,  dower  is  assigned,  and  ejectment  may  then  be 
brought.  In  consequence,  however,  of  the  jurisdiction  assumed 
by  courts  of  equity  in  regard  to  setting  out  dower,  the  prosecu- 
tion of  a  writ  of  dower  has  become  very  unusual,  except  where 
it  is  ordered  by  Chancery  to  try  a  disputed  title. § 

"  Dower  being  a  real  action,"  says  Mr.  Park,||  "  no  damages 
were  at  the  common  law  recoverable  for  its  detention."     "  No 

*  Alexander  v.  Herr,  11  Penn.  537.  country:  and  the  learned  author  of  the  Trea- 

t  Black.  Com.  hook  ii.  ch.  8,  §  iv.  p.  129.  tise  on  Pleading  and  Practice  in  Real  Actions, 

%  A  Treatise  on  tlie  Law  of  Dower,  by  John  says    that   he    never   knew   any   such    action 

James  Park,  London,  283.  brought     in     Massachusetts.     Steam's     Real 

§  The  writ  of  right  of  dower  is  of  rare  Actions,  307  ;  Kent's  Com.  vol.  iv.  p.  63. 

occurrence   if  not  entirely  unknown  in  this  ||  Park  on  Dower,  301 . 


CH.    IV.]  DOWER.  1,39 

damages,"  says  Mr.  Sayer,*  "  are  recoverable  either  at  the  com- 
mon law  or  under  any  statute,  in  an  action  of  right  of  dower." 

Statute  of  Merton.  —  But  in  the  action  of  dower  unde  nihil 
habct,  damages  were  given  hj  the  statute  of  Merton.  This  act 
gave  damages  to  Avidows  Avho  could  not  have  their  doiver  without 
flea.  A  previous  demand  was,  therefore,  necessary,  and  in  an 
action  t  under  this  statute,  where  the  jury  upon  a  writ  of  in- 
quiry assessed  damages  to  the  amount  of  the  tliird  part  of  the 
value  of  the  land,  from  the  death  of  the  husband  to  the  day  of 
the  inquisition,  without  making  deductions  for  land-tax,  repairs, 
or  chief-rents,  the  inquisition  was  set  aside  on  the  two  grounds, 
that  these  deductions  should  have  been  made,  and  that  the 
damages  should  have  been  assessed  to  the  day  of  awarding  the 
writ  of  inquiry  only ;  but  on  this  latter  point  there  are 
conflicting  decisions,  and  the  contrary  rule  seems  now  [130] 
to  be  established. t 

It  appears  that  by  damages  under  this  statute  are  to  be  un- 
derstood the  net  profits  of  the  third  part  of  the  land  subse- 
quent to  the  death  of  the  husband,  or  the  teste  of  the  original 
after  deducting  outgoings.  So,  if  the  lands  are  leased  for  years 
before  marriage,  the  wife  will  recover  dower  not  according  to 
the  value  of  the  land,  but  according  to  the  rents ;  and  it  follows 
that  if  the  rent  reserved  was  nominal,  no  damages,  or  none  but 
nominal  damages,  can  be  recovered.§ 

On  a  plea  of  tout  temps  prist  to  a  declaration  in  dower  under 
the  statute  of  Merton,  replication  of  a  demand  and  refusal  to 
render  dower  before  the  writ,  rejoinder  traversing  the  demand, 
and  issue  thereon  found  for  the  demandant,  the  demandant  is 
entitled  to  damages  from  the  death  of  her  husband,  and  not 
from  the  date  of  the  demand  only.|| 

Many  other  cases  have  been  decided  on  the  statute  of  Mer- 
ton, which  will  be  found  in  Mr.  Park's  valuable  treatise  above 
cited ;  but  equity  having,  as  already  said,  obtained  a  very  ex- 
tensive control  over  the  subject  of  dower,  it  does  not  aj^pear 
necessary  to  do  more  than  to  refer  to  a  repository  of  the 
authorities  which  appertain  to  this  branch  of  the  law.^ 

New  York  Statute.  —  In  New  York,  the  action  of  ejectment 

*  Ch.  6,  p.  23.  S.)  C.  p.  25.     1  Eng.  L.  &  E.  371  ;   10  C. 

t  Pcnricc  v.  Penrice,  Barnes'  Notes,  3d  ed.  B.  3. 

191,  234.  TT  In  South  Carolina  and  Ohio,  no  damages 

X  Pilford's  case,  10  Rep.  117  ;  Walker  and  are  allowed  in  a  judgment  of  dower,  and  the 

Nevil's  case,  1  Leon.  56 ;  Park  on  Dower,  308,  rule  prescribed  in  the  statute  of  Merton  is  not 

and  cases  there  cited.  adopted  nor  followed.     Heyward  v.  Cuthbcrt, 

§  Hilchens  v.  Hilchens,  2  Vern.  403.  1  McCord's  R.  386  ;  Bank  U.  S.  v.  Dunseth, 

II  Watson  V.  Watson,  20  Law  J.  Rep.  (N.  10  Ohio  18. 


140  DAMAGES    IN    REAL   ACTIONS.  [CH.    IV. 

was  early  substituted  for  the  former  legal  remedies  for  the  re- 
covery of  dower,  writs  of  dower  being  formally  abolished  ;  * 
and,  in  this  action,  it  is  provided,  by  statute,  that  "  wherever 
the  wife  recovers  dower  in  lands  of  which  her  husband  shall 
have  died  seized,  she  shall  be  entitled  also  to  recover  damasres 
for  the  withholding  of  such  dower.  Such  damages  shall  be 
one  third  part  of  the  annual  value  of  the  mesne  profits  of  the 
lands  in  which  she  shall  so  recover  her  dower,  to  be  estimated 
in  a  suit  against  the  heirs  of  her  husband  from  the  time 
[131]  of  his  death,  and  in  suits  against  other  persons  from  the 
time  of  her  demanding  her  dower  of  such  persons ;  and 
in  all  cases  to  be  estimated  to  the  time  of  recovering  judgment 
for  such  damages,  but  not  to  exceed  six  years  in  the  whole  in 
any  case."t  ^  Such  damages  are  not  to  be  estimated,  however, 
for  the  use  of  any  permanent  improvements  made  after  the 
death  of  the  husband,  by  his  heirs  or  by  other  persons  claiming 
title,  t 

And  it  is  further  enacted,  that  where  dower  is  recovered  in 
lands  that  have  been  aliened  by  the  heir,  the  wife  shall  be  en- 
titled, in  an  action  on  the  case  against  the  heir,  to  recover  her 
damages  for  withholding  the  dower  from  the  time  of  the  hus- 
band's death  to  the  time  of  the  alienation,  not  exceeding  six 
years  in  all ;  and  any  damages  so  recovered  against  the  heir,  or 
in  the  dower  suit  against  the  heir's  grantee,  are  to  be  respec- 
tively deducted  from  each  other.§  The  provision  which  gives 
damages  from  the  time  of  the  husband's  death,  is  an  affirmance 
of  the  doctrine  laid  down  by  the  Supreme  Court  of  New  York 
in  an  early  case.|| 

In  a  somewhat  recent  case,^  the  construction  of  this  statute 
was  settled ;  and  it  was  held  that  where  lands  were  aliened  by 
the  husband,  the  value  was  to  be  computed  as  at  the  time  of 
the  alienation,  and  no  more  ;  and  it  was  further  held,  that  when 
the  widow  brings  ejectment  for  dower,  although  before  admeas- 
urement, she  is  entitled  to  costs.** 

*  2  R.  S.  343,  §  24  ;  2  R.  S.  304,  §  2.  See,  also,  Jackson  exdeni.  Clark  v.  O'Donaghy, 

t  1  R.  S.  742  and  743,  §§  19  and  20.  7  J.  R.  247  ;  Humphrey  v.  Phinney,  2  J.  R. 

t  Ibid.  sec.  21.  484;  Dorchester  v.  Coventry,  11  J.  R.  510; 

§  2  R.  S.  743,  §  22.  In  Virginia,  the  widow  Dolf  v.  Bassett.  15  J.  R.  21 ;  Shaw  v.  White, 

recovers  damages   against  an   alienee  so   far  13  J.  R.  179  ;  Coates  v.  Cheever,  1  Cow.  460. 
forth  as  profits  are  concerned,  only  from  tliedate        If  Walker  v.  Schuyler,  10  Wend.  480. 
of  the  .subpoena.     Tod  y.  Baylor,  4  Leigh's  R.         **  In   Massachusetts,    see   on  this    subject 

498.     In    Maryland,    from    the    time    of    the  Leonard  v.  Leonard,  4  Mass.  533 ;   Miller  v. 

demand     and    refusal     to    assign;     Steigcr's  Miller,   12  Mass.  454;  Conner   v.   Shepherd, 

Adm.  V.  Hillen,  5  Gill  &  Johnson,  121.    In  15  Mass.  164,  167;  Ayer  r.  Spring,  10  Mass. 

New  Jersey,  see  Woodruff  v.  Brown,  2  Har-  80  ;    Perry  v.    Goodwin,  6   Mass.    498,  499  ; 

rison's  N.  J.  Rep.  246.  Leavitt  v.  Lamprey,  13  Pick.  382  ;  Stearns  v. 

II  Hitchcock  V.    Harrington,  6   J.   R.   290.  Swift,  8  Pick.  532. 

1  So  in  Iowa.    O'Ferrall  v.  Simplot,  4  Iowa,  381. 


CH.    IV.]  DOWER.  141 

Right  of  Dower  in  Improvements.  —  On  this  point,  independ- 
ently of  any  statutory  provision,  some  perplexity  exists,  and 
the  greatest  authorities  of  American  law,  Chancellor  Kent  and 
Mr.  Justice  Story,  are  divided.  The  authorities,  both  English 
and  American,  have  been  fully  examined  by  Mr.  Justice 
Story,  on  the  Massachusetts  circuit ;  *  and  the  result  [132] 
arrived  at  by  him  is,  that  when  the  heir  builds  on  or 
otherwise  improves  the  estate,  the  widow  shall  have  her  dower 
of  the  improvements,  otherwise  as  against  a  purchaser ;  but 
that  as  against  the  latter  the  dowress  is  to  have  the  benefit  of 
any  enhanced  value  of  the  land  between  the  alienation  and  the 
assignment  of  dower,  arising  from  the  general  progress  and 
population  of  the  country.  So,  if  the  land  has  depreciated,  she 
sustains  the  loss.f  On  the  other  hand,  Mr.  Chancellor  Kent 
has  critically  examined  the  subject  in  his  Commentaries,  and 
declares  it  to  be  the  ancient  and  settled  rule  of  the  common 
law,  that  the  wddow  takes  her  dower  according  to  the  value  of 
the  land  at  the  time  of  the  alienation,  and  not  according  to  its 
subsequent  or  improved  value  ;  though  he  assents  as  to  the 
right  of  the  dowress  to  be  allowed  for  increased  value,  arising 
from  extrinsic  or  general  causes.t  In  this  conflict  of  authori- 
ties, it  becomes  me  only  to  state  the  doubt  as  it  exists.  § 

*  Powell  V.  Monson  &  Brimfield's  Manufac-  Virginia,  which  excludes  improvements.    Wil- 

turing  Co.  3  Mason,  347.  son  v.  Oatman,  2  Blackf.  Ind.  R.  223;  Maho- 

t  Leggett  V.  Steele,  4  Wash.  C.  C.  R.  305  ;  ney  v.  Young,  3  Dana's  Ken.  R.  588  ;  Wall  v. 

Coke's  Littleton,  32 a;  Perkins,  Dower,  §§  328,  Hill,   7  Ibid.  172;  Wooldridge  v.  Wilkins,  3 

329  ;   Bacon's  Abr.    Dower,  B.    5 ;    GUbert's  Howard's  Miss.  R.  360. 

Tenures;  Gore  v.  Braizer,  3  Mass.  523,  534;         In  Virginia,  the  act,  1  Rev.  Code,  ch.  118, 

Catlin  V.  Ware,  9  Mass.  218  ;  Ayer  v.  Spring,  §  1,  468,  which  authorizes  the  recovery  ofdam- 

9  Mass.  8  ;  S.  C.  10  Mass.  80.     But  in  New  ages  in  writs  of  right,  intends  such  damages 

York  the  point  seems  doubtful.     Humphrey  v.  as  may  be  recovered  in  actions  of  trespass  for 

Phinney,  2  J.  R.  484  ;  Dorchester  v.  Coventry,  mesne  profits.     Purcell  v.  Wilson,  4  Grattan, 

11  J.  R.  510;  Shaw  y.  White,  13  J.  R.  179;  16.     See   a   recent  English   case,  Garrard  v. 

Hale  V.  James,  6  J.  C.  R.  258  ;  Roper,  Hus-  Tuck,  8  Man.   Gr.  «&  S.  231,  of  dower  uncle 

hand   and  Wife,   ch.  9,    §  8,   346,   347.      In  nihil  habet,  where  it  was  held  that  the  exact 

Pennsylvania  and  Ohio,  Mr.  Justice   Story's  number  of  acres  of  land  in  respect  of  which 

doctrine  is  upheld.     Dunseth  i\  Bank  of  the  dower  is  demanded  is  not  material  in  a  writ 

U.  S.   6  Ohio,  76  ;   Thompson  v.  Morrow,  5  and  count  in  dower.     And  see  the  same  ca.se 

Serg.  &  Rawle,  289.  as  to  the  effect  of  outstanding  terms,  and  set- 

t  Com.  vol.  iv.  p.  65.  ting  aside  and  quashing  writs  of  error. 

§  See  Tod  v.  Baylor,  4  Leigh's  R.  498,  in 


CHAPTER  V. 

MEASURE    OF   DAMAGES    FOR   WRONGFUL   INTERFERENCE   WITH   REAL 

PROPERTY. 

The  Rule  of  Damages  in  Actions  for  Wrongful  Interference  with  the  Occupa- 
tion or  Enjoyment  of  Real  Estate.  — Trespass  to  Real  Property.  —  Mills.  — 
Flooding  Lauds.  —  Actions  by  Reversioners.  —  Case.  —  Nuisance.  —  Waste. 

Nominal  Damages  for  Trespass  to  'Real  Property.  —  We 
have  already  seen,*  when  treatmg  of  the  subject  of  nominal 
damages,  that  every  unauthorized  entry  on  the  real  estate  of 
another,  whether  actual  injury  be  or  be  not  thereby  inflicted, 
lays  the  foundation  for  a  claim  to  at  least  nominal  damages.! 
So  says  the  Supreme  Court  of  Connecticut,  "An  injury,  legally 
speaking,  consists  of  a  wrong  done  to  a  person,  or  in  other 
words,  a  violation  of  his  right.  For  the  vindication  of  every 
right  there  is  a  remedy.  When,  therefore,  there  has  been  a  vio- 
lation of  a  right,  the  person  injured  is  entitled  to  an  action.  If 
he  is  entitled  to  an  action  he  is  entitled  to  at  least  nominal 
damages,  or  else  he  would  not  be  entitled  to  a  recovery.  Such 
damages  are  given  in  order  to  vindicate  the  right  which  has  been 
invaded ;  and  such  further  damages  are  awarded  as  are  proper  to 
remunerate  him  for  any  specific  damage  which  he  has  sustained.^ 
It  is  on  this  principle  that  a  person  may  sustain  an  action  of 
trespass  for  an  unauthorized  entry  on  his  land,  although  he 
show  no  actual  specific  damage  to  have  thereby  accrued  to  him, 
and  even  although  the  defendant  may  prove  that  such  act  was 
beneficial  to  the  plaintiff."  t  And  we  have  also  considered  the 
rules  of  compensation  where  the  possession  of  real  property  has 
been  wrongfully  withheld.  The  present  division  of  our  subject 
is  consequently  reduced  to  narrow  limits. 

*  Ante,  ch.  ii.  p.  43,  et  seq.  So  in  Texas,  Cai'-  14  J.  R.  406.     But  it  has  been  held  otherwise 

ter  et  al.  v.  Wallace,  2  Texas,  20t).  in  Pennsylvania,  if  the  chattel  was  wrongfully 

t  So  even  an  entry  on  the  plaintiff's  land  taken  away.     Chambers  v.  Bedell,  2  Watts  & 

for  the  purpose  of  taking  away  the  defendant's  S.  225. 

own  property,  is  a  technical  trespass.     Hecr-         |  Parker  ?;.  Griswold,  17  Conn.  288. 
mance  v.  Vernoy,  6  J.  R.  5  ;  Blake  v.  Jerome, 

^  See  Sanderlin  v.  Shaw,  6  Jones  (N.  C),  225.  In  an  action  for  obstructing  a  right  of  way, 
the  plaintiff  is  not  to  be  limited  to  the  recovery  of  nominal  damages.  Smiles  v.  Hastings,  24 
Barb.  44. 


CH.    v.]  TRESPASS    TO    REAL   PROPERTY.  143 

As  a  general  rule,  the  remedy  for  illegal  entries  upon  [134] 
real  estate,  or  interference  with  its  enjoyment,  is  either 
by  an  action  of  trespass,  or  trespass  on  the  case,  or  proceedings 
as  for  nuisance  ;  in  all  these  proceedings  the  rules  are  analogous, 
and  the  measure  of  damages  is  the  amount  of  injury  directly 
resulting  from  the  act  complained  of.^ 

Principles  Controlling  Damages  in  Trespass.  —  It  is  well 
settled  in  England,  and  generally  in  the  United  States,  that 
to  entitle  the  plaintiff  to  bring  an  action  of  trespass  quare  clau- 
sum  f regit,  possession  in  fact  is  indispensable* ^     And  as  against 

*  3  Wooddcson,  193,  194 ;  Bcdingfiekl  v.  Texas,  also,  a  lessor  cannot  maintain  an  ac- 
Onslow,  3  Lev.  209.  The  general  doctrine  tion  for  a  trespass  committed  on  the  leased 
that  trespass  quare  dausum  fregit  will  not  lie  premises  while  in  possession  of  the  tenant ; 
by  lessor  out  of  possession  against  a  stranger  the  lessee  alone  can  sue.  Reynolds  v.  Wil- 
for  an  injury  to  real  property,  is  well  settled  liams,  1  Texas,  311.  In  the  ordinary  case  of 
in  New  York.  Campbell  v.  Arnold,  1  J.  R.  carrying  on  a  farm  at  the  halves,  the  owner  is 
511;  Stuyvesant  v.  Dunham,  9  J.  R.  61;  not  so  far  divested  of  the  possession  but  that 
Wickham  v.  Freeman,  12  J.  R.  183;  unless  he  may  maintain  trespass  for  injury  to  the 
where  the  plaintiff  shows  title  to  lands  not  in  inheritance.  Cutting  v.  Cox,  19  Verm.  517. 
the  actual  possession  of  any  one;  in  which  And  if  the  plaintift'  have  the  right  of  proper- 
case  the  possession  follows  the  title.  Van  ty,  and  of  immediate  possession,  he  may  main- 
Rensselaer  v.  Radclitfe,  10  Wendell,  639  ;  tain  trespass  though  not  in  actual  ]30ssession. 
Holmes  v.  Seely,  19  Wend.  507;  and  so  in  Mason  w.  Lewis,  1  Iowa  (Greene),  494  ;  Poole 
Massachusetts,  Lienow  v.  Ritchie,  8  Pick.  r.  Mitchell,  1  Hill  (S.  C.)  404.  In  Connecticut, 
235;  French  v.  Fuller,  23  Pick.  104.  And  it  has  been  decided  that  a  plaintiff  in  trespass, 
it  is  equally  well  settled  in  Ohio :  Miller  v.  having  the  sole  and  exclusive  possession,  may 
Fulton,  4  Hammond's  Ohio  R.  433.  And  in  recover  against  a  wrong-doer  the  whole  dam- 
Kentucky  :  Foster  v.  Fletcher,  7  Monroe,  536  ;  age  done  by  him,  though  the  conveyance  from 
O wings  V.  Gibson,  2  A.  K.  Marsh.  515  ;  Car-  some  of  those  under  whom  he  claims  was  de- 
rine  v.  Westerfield,  3  A.  K.  Marsh.  331.     In  fective.     Curtiss  v.  Hoyt,  19  Conn.  154. 

1  This  is  the  general  rule,  namely,  that  the  diminished  value  of  the  property  or  of  the  plain- 
tiff's  interest  in  it,  and  not  the  cost  of  restoring  the  premises  to  their  original  condition,  fur- 
nish the  measure  of  damages  for  injuries  to  real  estate.  Hosking  v.  Philips,  3  Exch.  168; 
Lukin  V.  Goodsall,  Peake  Ad.  Ca.  15. 

Therefore  the  measure  of  damages  for  an  injury  to  a  freehold  would  bo  the  difference  be- 
tween its  value  when  the  injury  began  and  such  value  as  affected  by  it.  Honsee  v.  Hammond, 
39  Barb.  (N.  Y.)  89. 

In  an  action  in  the  nature  of  trespass  q.  c.f.  to  recover  damages  for  the  plaintiff's  house  and 
furniture  which  were  destroyed  by  a  fii-e-warden  without  right,  for  the  purpose  of  staying  a 
conflagration,  the  jury  should  estimate  the  value  of  the  property  with  reference  to  the  peril  to 
which  it  was  exposed,  and  give  nominal  damages  only  for  that  which  could  not  have  been 
saved.     Parsons  v.  Pettingell,  11  Gray  (Mass.),  507. 

The  holder  of  a  pew  in  a  church  has  a  remedy  where  his  pew  is  destroyed  liy  the  trustees 
for  convenience  only,  or  where  the  trustees  have  been  guilty  of  a  wanton  and  malicious  abuse 
of  their  jjower  in  destroying  his  pew.  His  only  remedy  in  such  cases  is,  however,  by  an  action 
for  damages  by  way  of  indemnity  for  the  loss  of  his  pew.  If  the  church  edifice  is  so  far 
decayed  as  to  be  unfit  for  use  as  a  house  of  public  worship,  and  it  is  for  that  reason  taken 
down,  the  pew-holder's  right  to  his  pew  is  gone,  and  he  is  not  entitled  to  any  indemnity  for  its 
loss.  Voorhees  v.  The  Presbyterian  Church  of  Amsterdam,  17  Barb.  (N.  Y.)  103;  affirming 
S.  C.  8  Ibid.  135.  Compare  the  case  of  The  Minister,  &c.,  of  the  Ref.  D.  Church  in  Sauger- 
ties,  16  Ibid.  237.     See  Grier  v.  Ward,  23  Geo.  145. 

'^  A  tenant  may  recover  for  damages  to  his  possession,  though  not  for  injury  to  the  freehold  ; 
and  he  is  entitled  to  whatever  damages  he  sustains  by  the  interference  with  his  possession.  So 
held  where  the  defendant,  in  blasting  rock  on  his  own  land,  threw  stones  on  an  adjoining  lot 
occupied  by  plaintiff  as  tenant ;  and  so  extended  his  blast  as  to  forcibly  split  out  the  rock  in 
defendant's  lot,  undermining  the  foundation  of  his  house.  Gourdicr  v.  Cormack,  2  E.  D. 
Smith's  (N.  Y.)  C.  P.  R.  200. 

In  estimating  the  damages  recoverable  by  a  tenant  of  a  building  for  injuries  to  his  posses- 
sion, the  expense  necessary  to  restore  the  building  to  a  state  such  as  would  make  that  posses- 


144  DAMAGES   IN   REAL   PROPERTY.  [CH.    V. 

a  wrong-doer  bare  possession  is  sufficient  *  And  it  results  from 
this  same  rule,  that  if  the  trespass  amount  to  an  ouster  of  the 
plaintift',  he  can  recover  damages  only  for  the  trespass  itself,  or 
first  entry ;  for  though  every  subsequent  wrongful  act  is  a  con- 
tinuance of  the  trespass,  yet  to  enable  the  plaintiff'  to  recover 
damages  for  these  acts  there  must  be  a  re-entry.f 

It  will  be  borne  in  mind,  in  the  consideration  of  the  present 
division  of  the  subject,  as  we  have  already  had  occasion  to 
notice, $  that  as  the  jury  in  actions  of  tort  are  not  re- 
[135]  strained  to  the  amount  of  the  mere  pecuniary  loss  sus- 
tained by  the  plaintiff*  he  is  always  at  liberty  to  give  in 
evidence  the  circumstances  which  accompany  and  give  charac- 
ter to  the  trespass.§  And  if  the  act  be  malicious  or  oppressive, 
exemplary  damages  may  therefore  be  recovered. ||  In  Pennsyl- 
vania, where  a  party  proceeded  in  the  Common  Pleas,  under  the 
act  of  that  State,  to  obtain  the  right  to  enter  on  land  of  a  third 
party  to  make  a  railroad,  and  after  the  value  of  the  land  of  the 
plaintiff"  was  fixed  upon,  but  before  judgment  was  given,  pro- 
ceeded to  enter,  it  was  held  that  though  this  did  not  excuse  the 
trespass,  it  took  away  all  pretext  for  vindictive  damages.^  But 
of  these  damages  we  shall  have  occasion  to  speak  more  fully 
when  we  come  to  consider  the  rule  of  damages  in  regard  to 
torts  in  general. 

Kemote  Damages. — We  have  also  seen,**  that  the  plaintiff"  is 
limited  to  the  immediate  consequences  of  the  wrongful  act,  and 

*  Chambers   v.   Donaldson,    11    East,    66;  Kentucky:  Shields  i;.  Henderson,  1   Lit.  Rep. 

Graham  v.  Peat,  1  East,  244;  First  Parish  in  239. 

Shrewsbury  v.  Smith,  14  Pick.  297  ;  Branch  |  Supra,  36. 

V.  Doane,  18  Conn.  233.  §  Starkie's  Evidence,  vol.  ii.  p.  1114.    Tres- 

t  Holcomb    V.    Rawlyns,    Cro.    Eliz.    540 ;  pass.     Damages. 

Monckton  v.  Pashley,  2   Ld.  Raym.  974  ;  S.  ||  So  in  Alabama,  Mitchell   v.   Billingsley, 

C.   2   Salk.  638  ;   Black.  Com.  lib.  iii.  p.  210  ;  17  Ala.  391. 

Case  V.  Shepherd,  2  J.  Cases,  27  ;    Holmes  v.  ^  Harvey  v.  Thomas,  10  Watts,  63. 

Seely,  19  Wend.  507.    And  so  in  Ohio  :  Row-  **  Supra,  56,  et  seq. 
land   V.   Rowland,  8    Ohio   R.  40.      And   in 

si  on  as  beneficial  to  the  tenant  as  it  was  before  the  trespass  was  committed,  should  be  allowed. 
In  general  such  allowance  should  not  exceed  the  value  of  plaintiff's  term,  taking  into  view  the 
rent  reserved.  But  where,  in  an  action  for  such  trespass,  it  appears  that  by  the  terms  of  the 
tenancy  the  plaintitf  is  bound  to  make  repairs,  and  to  restore  the  premises  to  the  landlord  at 
the  end  of  the  term  in  as  good  a  condition  as  when  they  were  leased,  then  the  defendant  is 
bound  to  enable  the  plaintitf  to  put  the  Iniilding  in  as  good  a  condition  as  it  was  when  the 
trespass  was  committed.     Walter  v.  Post,  4  Abbott's  Pr.  R.  382  ;  6  Duer,  363. 

Ami  the  action  being  maintainable  by  one  who  has  possession  only,  where  it  was  brought  by 
one  claiming  title  as  well  as  having  possession,  it  was  held  that  the  defendant  could  not  show 
a  want  of  title  in  the  plaintiff  in  mitigation  of  damages.     Reed  v.  Price,  30  Mo.  442. 

In  Maryland  it  is  held,  that  in  an  action  by  a  termor  against  his  reversioner,  the  measure  of 
damages  is  the  actual  loss  sustained  by  tlie  lessee ;  but  in  such  an  action  against  a  stranger 
and  wrong-doer,  the  termor  is  treated  as  the  absolute  owner  of  the  property,  and  he  is  held 
entitled  to  recover  its  full  value.  Harker  v.  Dement,  9  Gill,  7.  As  to  a  recovery  by  one  of 
two  co-tenants,  see  Hibbard  v.  Foster,  24  Vt.  542. 


CII.    v.]  TRESPASS    TO    REAL   PROPERTY.  145 

that  remote  damages  are  not  allowed  *^  In  Maryland,  however, 
in  trespass  qnare  claimmi,  the  plahitiff  has  been  allowed  to  give 
evidence  of  damage  to  his  crop,  occasioned  by  reason  of  the 
defendant  driving  away  his  negroes.f  ^  And  if  the  defendant, 
while  a  trespasser  on  the  plaintiff's  land,  commits  any  other  dis- 
tinct trespass  for  which  a  separate  action  would  lie,  yet  such  acts 
of  trespass  and  their  consequences  may  be  alleged  and  proved 
in  asrorravation  of  damao;es.  Thus  in  an  action  for  breakino;  and 
entering  the  plaintiff's  house,  the  debauching  of  his  daughter 
and  servant,  and  the  consequential  damages  to  the  plaintiff, 
may  be  laid  in  aggravation.^ 

So  in  trespass  for  the  entry  of  diseased  cattle,  damage  from 
infection  may  be  stated  in  aggravation ;  and  so  in  Connecticut,  in 
an  action  of  trespass  quare  clausiim  frcgit,  where  the  defendant's 
sheep,  while  trespassing  on  the  plaintiff's  land,  mingled  with 
his  sheep  and  communicated  to  them  a  dangerous  disease  of 
which  many  died,  it  was  held  that  the  plaintiff  might  recover  for 
the  loss  of  his  sheep  as  well  as  the  breach  of  his  close,  and  that 
the  defendant's  knowledge  of  the  existence  of  the  disease  might 

*  Loker  v.  Damon,  17  Pick.  284  ;  and  supra,  nett  v.  Allcott,  2  T.  E.  166.     The  rule  is  the 

96.  same  in  Kentucky.     Wright  v.   Chandler,  4 

t  Johnson  v.  Courts,  3  Har.  &  M'Hen.  510.  Bibb,  422. 
I  Starkie  on  Evidence,  vol.  ii.  p.  1114  ;  Ben- 

1  In  actions  of  trespass  brought  for  the  reparation  of  some  injury  to  the  plaintiff's  right  to 
real  estate,  where  no  indignity  to  the  person  or  invasion  of  tlie  personal  rights  of  the  plaintiff 
appears,  the  extent  of  the  injury  to  his  proprietary  rights  furnishes  the  true  measure  of  dam- 
ages,    jefcoat  I'.  Knotts,  13  Rich.  L.  (S.  C. )  50. 

In  an  action  for  injury  to  leasehold  projjerty  from  a  cause  which  could  be  ascertained,  and 
the  continuance  of  which  could  be  prevented  at  a  moderate  expense,  it  is  erroneous  to  estimate 
the  damages  by  a  difference  between  the  value  of  the  lease  before  the  injury  and  after  it.  Terry 
V.  The  Mayor'and  Commonalty  of  New  York,  8  Bosw.  (N.  Y.)  504. 

In  an  action  against  a  municipal  corporation  for  negligence  in  building  a  wall,  in  conse- 
quence of  which  the  wall  fell  and  injured  the  plaintiff's  mill,  the  damages  recovered  should  be 
equal  only  to  the  actual  injury  sustained,  with  interest  on  the  amount  from  the  time  it  occurred. 
If  any  rent  is  allowed,  it  can  be  for  such  time  only  as  is  necessary  to  repair  the  premises.  Lud- 
low V.  Village  of  Yonkers,  43  Barb.  493. 

In  an  action  to  recover  for  injuries  to  the  plaintiff's  land,  occasioned  by  its  falling  in,  in  con- 
sequence of  excavations  made  by  the  defendant  in  his  own  land  adjoining,  the  measure  of 
damages  is  not  what  it  will  cost  to  restore  the  lot  to  its  former  condition,  or  to  build  a  wall  to 
support  it,  but  the  amount  by  which  the  lot  is  diminished  in  value  by  reason  of  the  acts  of  the 
defendant.     McGuire  v.  Grant,  1  Dutcher's  (N.  J.)  R.  356. 

In  an  action  for  damages  for  obstructions  which  hindered  the  plaintiff  in  his  business,  as  the 
keeper  of  a  refectory  and  lodging-house,  and  diminished  his  custom,  loss  of  custom  and  of 
profits  are  the  measure  of  damages ;  and  the  mode  of  computing  the  damages  is  by  proof  of 
the  actual  receipts  of  the  plaintiff's  hotel  for  a  sufficient  period  previous  to  the  obstructions, 
the  actual  receipts  during  the  continuance  of  the  obstructions,  and  the  receipts  after  they  were 
removed.     St.  John  v.  The  Mayor,  &c.,  of  New  York,  13  How.  Pr.  R.  527  ;  6  Ducr,  315. 

In  an  action  of  forcible  entry  and  detainer,  for  the  purpose  of  determining  the  measure  of 
damages,  the  jury  may  look  not  only  to  the  violation  of  the  plaintiff's  right,  and  the  manner 
in  which  it  was  done,  but  to  any  actual  inconvenience  or  expense  directly  resulting  from  the 
unlawful  act  of  the  defendant.  White  v.  Suttle,  1  Swan  (Tenn.),  169.  This  is  not  allowed 
in  California.  Kower  ?;.  Gluck,  33  Cal.  401.  The  question  depends  on  the  construction  ot 
statutes. 

-  And  so  of  damage  to  crops  occasioned  by  defendant  removing  fence.  Gray  v.  Waterman, 
40  111.  522. 

10 


146  DAMAGES   IN    REAL    ACTIONS.  [CH.    V. 

properly  be  considered  by  the  jury  in  estimating  damages*  So 
spoliation  or  asportation  of  trees  may  be  laid  as  aggra- 
[136]  vation  in  this  form  of  proceeding.!  And  the  value  of 
fruit-bearino;  trees  is  to  be  estimated  with  reference  to 
what  they  are  worth  on  the  premises  in  their  growing  state, 
and  not  as  taken  up  and  removed  from  the  place.$  ^ 

So  the  value  of  growing  timber  is  what  it  was  worth  at  the 
place  where  it  stood  when  the  trespass  was  committed,  not  what 
it  would  have  been  worth  if  differently  situated  in  other  parts 
of  the  country.§ 

And  in  an  action  of  trespass  for  entering  upon  the  plaintiff's 
close,  and  carrying  away  the  soil,  the  proper  measure  of  dam- 
ages has  been  held  by  the  English  Court  of  Exchequer  to  be  the 
value  of  the  land  removed,  and  not  the  expense  of  restoring  the 
premises  to  their  original  condition.] |  ^ 

But  where  trespass  was  brought  for  breaking  and  entering 
the  plaintiff's  dwelling-house,  and  taking  and  carrying  away 
certain  goods  and  chattels,  and  converting  and  disposing  of  the 
same  to  the  defendant's  use,  it  fiot  being  averred  that  the  chat- 
tels belonged  to  the  plaintiff,  the  judge  who  tried  the  cause 
directed  a  verdict  for  the  trespass  only ;  and  on  a  motion  to 
increase  the  damages,  this  was  held  right.^  ^ 

Nor  will  the  damages  be  allowed  to  be  given  with  any  refer- 
ence to  the  defendant's  wealth  or  poverty ;  and  if  evidence  to 
this  point  is  admitted,  the  verdict  will  not  be  allowed  to  stand.** 

Where  a  plaintiff  had  a  right  of  action  against  the  defendant 
for  a  tortious  entry  by  the  latter  on  his  land  and  committing  a 
nuisance  thereon,  from  which  damages  ensued,  and  thereafter  a 
release  was  given ;  it  was  held  that  this  discharge  extinguished 
all  right  of  action  not  only  for  the  original  injury  and  damages 
up  to  the  time  the  release  was  given,  but  for  all  future  damages  ; 
that  if,  however,  the  defendant  had  placed  the  nuisance  on  his 
own   land,   and  the   plaintiff's  demand  was  for  consequential 

*  Barnmn  v.  Vanduscn,  16  Conn.  200.  J  Mitchell  v.  Billingsley,  17  Ala.  391. 

t  Anderson   v.   Biickton,    1    Strange,    192.  §  Ivey  v.  McQueen,  17  Ala.  408. 

Should  not  the  term  aggravation  be  limited  to  ||  Jones  v.  Gooday,  8  Mecs.  &  Wels.  146. 

acts  of  malicious  insult  or  injury  accompany-  T[  Pritchard  v.  Long,  9  Mees.  &  Wels.  666. 

ing  the  principal  transaction  '?  **  Myers  v.  Malcom,  6  Hill,  292. 

1  And,  per  contra,  the  rule  of  damages  in  an  action  for  the  destruction  of  such  trees  is  not 
the  extent  to  which  the  value  of  the  land  is  diminished  by  such  destruction.  Whitbcck  v.  N. 
Y.  Cent.  R.  11.  Co.  36  Barb.  644.  Otherwise,  where  the  action  is  by  a  mortgagee  or  lienor  for 
a  trespass.     State  v.  Weston,  17  Wis.  107  ;  Cory  v.  Silcox,  6  Ind.  39. 

^  lu  trespass  d.  h.  a.  by  one  tenant  in  common  against  another  for  carrying  away  the  whole 
crop,  the  damages  are  limited  to  the  value  of  the  share  wrongfully  taken.  Daniels  v.  Brown, 
34  N.  H.  454. 

•^  But  the  jury  may  combine  damages  for  the  defendant's  conduct  in  breaking  into  the  close 
and  for  his  subsequent  conduct,  as  cutting  and  i-emoving  timber.     Ilidgley  v.  Bond,  18  Md.  433. 


CH.    v.]  TRESPASS    TO    REAL   PROPERTY.  147 

damage  onl}^,  a  discharge  of  the  plaintiff  would  not  have  extin- 
guished the  right  of  action  for  future  damages  * 

Mills  and  Flow  age.  —  We  have  already  seen  that  where  the 
injury  consists  in  improperly  flooding  the  land  of  another, 
the  law  presumes  nominal  damages,  even  if  no  actual  [137] 
damage  be  proved ;  ^   and  so  if  water  be  wrongfully  di- 
verted from  a  mill,  or  a  water-course  be  obstructed,  nominal 
damages  will,  at  all  events,  be  awarded. f^ 

*  Vcdiler  v.  Vcddcr,  1  Dcnio,  257.  v.  Griswold,  17  Conn.  288  ;  Branch  v.  Doanc, 

t  Butuian  v.  Ilusscy,  3  Fairf.  407  ;  Parker     IS  Conn.  233. 

1  Sec  Miller  v.  Laubach,  47  Penn.  154.  For  measure  of  damages  in  this  class  of  cases,  see 
below,  note  2. 

2  Cliattield  v.  Wilson,  27  Vt.  670.  The  owners  of  a  dam  are  liable  for  the  full  amount  of 
the  injury  where  the  plaintiff'  is  not  guilty  of  negligence,  notwithstanding  he  might  have  ])re- 
vented  the  damage  by  an  expenditure  beyond  what  was  usual  and  necessary  before  the  dam 
was  erected.     Reynolds  v.  Chandler  River  Co.  43  Md.  513. 

In  an  action  on  the  case  for  damages  to  the  plaintiff's  saw-mill  and  other  property,  occa- 
sioned by  the  act  of  the  defendant  in  constructing  a  dam  and  dike  below  such  mill,  and  thereby 
causing  the  water  to  flow  back  upon  the  mill,  and  rendering  it  incapable  of  being  used,  the 
plaintitfs  are  entitled  only  to  recover  the  value  of  the  use  of  their  mill  during  the  time  they 
were  necessarily  deprived  of  the  use  of  it,  and  the  amount  it  was  permanently  diminislicd  in 
value  by  the  erection  of  the  dam.  They  cannot  recover  the  amount  of  a  loss  upon  saw-logs  on 
hand  at  the  time  of  the  injury,  sustained  either  in  consequence  of  a  deterioration  in  their  value, 
or  b}'  a  depression  in  the  market  price.  Walrath  v.  Redtield,  11  Barb.  (N.  Y.)  368  ;  affirmed 
18  N.  Y.  457. 

In  a  complaint  for  flowing  lands,  damages  can  be  awarded  only  for  the  effect!  of  the  dam 
described  in  the  complaint.  •  Those  arising  from  other  dams,  although  auxilkmj  to  the  one 
complained  of,  cannot  be  considered  by  the  jury.  Underwood  v.  North  Wayne  Scythe  Fac- 
tory, 38  Me.  75.  For  other  cases  on  flood  lands,  see  Bryant  v.  Glidden,  36  Me.  36  ;  Lawrence 
V.  The  Great  Northern  Railway  Co.  16  Q.  B.  643. 

There  is  some  conflict  of  authority  on  the  question  whether  in  an  action  for  flooding  lands, 
the  defendant  can  be  allowed  for  benefit,  if  any,  caused  by  the  flowing.  In  New  York,  in  an 
action  of  this  kind  for  injuries  occasioned  in  the  construction  of  a  railroad,  it  was  held  pro]ier 
to  charge  the  jury  that  the  rule  of  damages  in  that  class  of  cases  is  the  difference  between  the 
value  of  the  plaintitt"'s  premises  before  the  injury  happened,  and  the  value  immediately  after 
the  injury,  taking  into  the  account  only  the  damages  which  have  resulted  from  the  defendant's 
acts.  Chase  v.  The  New  York  Central'Railroad  Company,  24  Barb.  (N.  Y.)  273  ;  Easterbrook 
V.  Erie  R.  R.  Co.  51  Barb.  94.  But  see  the  qualification  of  this  principle  in  Terry  v.  The  Mayor, 
&c.,  of  New  York,  «»te,  135,  note  1.  All  allowance  for  benefit  was  also  denied  in  Gerrisli  v. 
The  New  Market  Manufacturing  Company,  10  Fost.  (N.  H.)  478.  See  also  Tillotson  v. 
Smith,  32  N.  H.  90.  But  in  Massachusetts,"  in  an  action  for  damages  occasioned  by  the  filling 
up  by  the  defendants  of  their  land  lying  adjacent  to  that  of  the  plaintiff,  whereby  the  free  flow 
of  water  oft'  the  plaintiff"'s  land  as  formerly  existing,  had  been  ol)structed,  it  was  held  that 
instructions  to  the  jury,  that  "  they  should  take  into  consideration  the  evidence  on  both  sides 
bearing  on  this  point,  and  if  they  were  satisfied  that  the  filling  up  had  actually  benefited  the 
plaintirt"s  estate  in  any  particular,  they  should,  in  assessing;-  the  damages,  make  an  allowance 
for  such  lieaefit,  and  give  the  plaintiff"  such  sums  in  damages  as  they  found  u])on  the  evidence 
would  fully  indemnify  and  compensate  him  for  all  the  damage  he  had  actually  sustained," 
—  were  correct.  Luther  v.  The  Winnisimmet  Companv,  9  Cush.  171.  To  a  like  effect  is 
Brower  v.  Merrill,  3  Chandler  ( Wis  ),  46.  But  the  Massachusetts  rule  seems  to  be  somewhat 
restricted  l)y  late  decisions.  'Ihe  allowance  must  be  confined  to  benefits  resulting  from  tlie 
overflow  itself,  and  does  not  include  those  incidentally  received  from  the  defendant's  operations 
in  other  respects.  So  the  benefit  to  the  complainant's  land  by  being  drained  by  a  ditch  made 
by  the  respondent  on  his  own  land  to  draw  water  from  a  pond"  to  the  projected  dam,  cannot  be 
offset  against  the  damage  caused  by  the  overflow  of  the  dam  after  its  erection.  Gile  ?•.  Stevens, 
13  Gray,  146.  So  where  a  riparian  proprietor,  by  obstructing  the  river  and  thereby  setting 
back  the  water,  becomes  liable  to  a  mill-owner  fur  the  damages  thereby  occasioned,  he  cannot, 
in  an  action  by  the  injured  party,  offset  the  benefit  to  the  plaintiff^s  lands  by  the  removal  of 
obstructions  in  the  river  at  another  time  and  place.     Talbot  v.  Whipple,  7  Gray,  122. 


148  DAMAGES   IN    REAL   ACTIONS.  [CH.    V. 

So  it  is  not  necessary  for  the  plaintiff,  in  an  action  for  the 
diversion  of  a  water-course,  to  show  that  he  has  sustained  specific 
damage  tliereby ;  he  may  recover,  notwithstanding  he  has  sus- 
tained no  actual  or  perceptible  injury.* 

In  Massachusetts,  where  an  action  was  brought  for  an  injury 
to  the  plaintiff's  mill,  by  causing  the  water  to  flow  back  on  it, 
the  judge  instructed  the  jury,  that,  if  the  plaintiff  proved  his 
mill  to  have  sustained  any  actual  perceptible  damage  in  conse- 
quence of  the  defendant's  act,  he  was  entitled  to  recover,  but 
that  for  a  theoretic  injury  or  damage  to  be  inferred  from  the 
obstruction  of  the  water  by  the  defendant's  dam,  he  was  not 
answerable  ;  and  on  motion  for  a  new  trial  this  was  held  right.f  ^ 

The  principle  of  the  common  law  in  cases  of  this  kind,  as  we 
shall  see  hereafter,  in  regard  to  nuisances,  is  that  successive 
actions  can  be  brought  as  long  as  the  obstruction  exists ;  and  in 
some  of  the  States  of  the  Union  an  attempt  has  therefore  been 
made  to  regulate  the  subject  by  statute.  So,  in  North  Carolina, 
an  act  was  passed,  of  which  the  leading  feature  is  to  prevent 
any  action  being  brought  against  the  owner  of  a  mill  unless  it 
be  first  ascertained  on  petition,  by  the  verdict  of  a  jury,  that 
the  annual  damage  during  the  time  for  which  the  action  is  to 
be  brought,  amounts  to  the  sum  of  twenty  dollars  at  least.$ 

Where  two  or  more  mills  are  entitled  to  a  common  use  of 
water,  the  owner  of  the  upper  mill  must  afford  the  lower  mill  a 
fair  and  reasonable  participation  in  its  use.  If  the  injury  is 
trivial  the  law  will  not  afford  redress,  but  it  will  interpose  to 
prevent  the  lower  mill  being  rendered  useless  or  unproductive.§ 

*  Parker  w.  Griswold,  17  Conn.  288  ;  Bowen         |  Gilliam  v.  Canaday,  11  Iredell,  106. 
V.  Hill,  1  Bing.  N.  C.  549.  §  Wheaton's  Sehvyn's  Nisi  Prius,  u.  1138 ; 

t  Thomjjson   v.    Crocker,  9  Pick.  59.     See     Sackrider  v.  Beers,  10  J.  E.  241. 
an  action  for  flooding  lands  in  Pennsylvania, 
Bell  V.  McClintock,  9  Watts,  119. 

1  Actual  compensation,  taking  into  account  all  qualifying  circumstances,  is  the  standard  in 
these  as  in  all  other  cases  of  trespass,  which  are  free  from  intentional  or  reckless  wrong.  So 
where  in  consefjuence  of  the  wrongful  construction  of  a  railway  embankment  the  plaintiffs 
lands  were  flooded,  but  would  have  been  flooded  in  a  lesser  dcgi-ee  had  the  embankment  not 
been  constructed,  the  measure  of  damages  was  held  to  be  the  difference  between  the  two 
amounts  of  damage.  Workman  v.  The  Great  Northern  Eailroad  Company,  32  Law  J.  (N.  S.) 
Q.  B.  279. 

In  an  action  to  recover  damages  for  the  unlawful  raising  a  dam  by  one  mill-owner  across  the 
stream  below  another's  mill,  thereby  interrupting  the  operation  of  the  latter  mill  by  back-water, 
evidence  of  the  profits  of  manufacture  thus  lost  by  the  plaintiti"  may  go  to  the  jury  as  a  basis 
on  which  to  estimate  the  plaintifTs  damages,  if  not  as  a  measure  of  them.  Simmons  v.  Brown, 
5  R.  L  299. 

And  the  occupant  of  premises  injured  in  such  a  case  by  the  setting  back  of  the  water  is 
entitled  to  damages  to  an  amount  sufficient  to  indemnify  him  for  the  interest  he  had  in  them. 
Brown  v.  Brown,  30  N.  Y.  519. 

To  a  like  effect  with  the  case  cited  in  the  text  is  Elliott  v.  The  Pitchburg  Railroad  Co.  10 
Cush.  (Mass.)  191.  See  also,  Burden  v.  The  Mayor  of  Mobile,  21  Ala.  309;  McElroy  v.  Go- 
ble,  6  Ohio  St.  187.  The  damage  from  the  stoppage  of  the  plaintirt^s  mill  is  an  injurious 
consequence  wiiich  he  may  recover  in  an  action  of  trespass  for  the  destruction  of  his  mill-dam 
without  specially  averring  it  in  the  declaration.     Spigelmoyer  i'.  Walter,  3  W.  &  S.  540. 


CH.    v.]  TRESPASS    TO    REAL    PROPERTY.  149 

And  in  a  case  of  this  nature,  the  Supreme  Court  of  New  York 
said,  that  the  defendants  were  liable  for  the  use  of  the 
water  beyond  tlieh'  relative  proportion,  and  that  in  esti-  [138] 
mating  the  damages  the  jury  should  be  governed  by  this 
principle ;  and  the  damages  were  arrived  at  by  a  comparison  of 
the  tolls  upon  the  number  of  barrels  of  flour  actually  ground 
by  the  plaintiff's  mill,  with  the  number  that  he  might  have 
ground  if  he  had  had  the  use  of  the  water  to  which  he  was 
entitled.* 

In  a  recent  case  in  the  Queen's  Bench,  where  in  an  action  of 
trespass  for  entering  the  plaintiff's  close  and  destroying  a  mill- 
dam,  the  defendant  justified  the  trespass  on  the  ground  that  he 
was  possessed  of  a  mill,  and  that  a  stream  of  water  of  right 
flowed  thereto,  and  that  the  plaintiff's  dam  obstructed  the  flow 
of  water  to  defendant's  mill,  it  was  asked  whether  the  plaintiff 
sought  to  recover  substantial  damages  ;  and  his  counsel  not  de- 
claring such  to  be  the  case,  the  Lord  Chief  Justice  said  that  the 
action  was  brought  more  to  try  a  right  than  to  recover  damages, 
and  directed  the  defendant  to  begin  ;  and  on  motion  for  a  new 
trial,  this  was  held  right.f 

Qualification  of  Land-owners'  Rights.  —  It  is  settled,  that  the 
right  of  an  owner  of  lands  to  the  enjoyment  thereof  is  qualified 
by  the  rights  of  others.  He  may  pursue  any  lawful  trade,  but 
he  cannot  create  a  nuisance  to  the  premises  of  another.  So  he 
may  dig  a  canal,  but,  in  so  doing,  he  has  no  right  to  blast 
rocks  so  as  to  cast  them,  upon  the  premises  of  a  third  party. 
And  in  such  a  case,  where  the  plaintiff  does  not  claim  exem- 
plary damages,  evidence  that  the  work  done  by  the  defendant 
was  performed  in  the  best  and  most  careful  manner,  is  irrelevant 
and  inadmissible. $ 

Actions  by  Reversioners.  —  There  is  a  class  of  cases  properly 
belonging  to  this  branch   of  our  subject,   where   actions  are 
brought  by  reversioners  for  injuries  to  their  inheritance,  the 
remedy  being  by  an  action  on  the  case  ;  §  ^  and  to  these 
we  shall  again  allude  when  treating  of  the  subject  of   [139] 

*  Merrittr.  BrinckerhofF,  17  J.  R.  306.    See  t  Hay   v.    Cohoes   Co.   2    Comstock,   159; 

also,  riatt  V.  Root,  15  J.  R.  213.  Tremain  v.  Cohoes  Co.  2  Comstock,  163. 

t  Chapman  i;.  Rawson,  April  15,  1846.  Ju-  §  In  Massachusetts,  it  was   held,  previous 

rist,  vol.  X.  p.  287.  to  the  revision  of  the  statutes  of  that  State, 

1  One  of  two  reversioners  may  maintain  the  action,  recovering  only  a  moiety  of  the  damages, 
if  the  non-joinder  of  the  co-reversioner  is  not  pleaded  in  abatement.  Putney  r.  Lapham,  10 
Gush.  (Mass.)  232. 


150  DAMAGES    IN    REAL    ACTIONS.  [ciI.    V. 

waste.*  It  was  at  first  doubted,  whether  the  reversioner's 
remedy  was  not  Hniited  to  the  case  of  an  absolute  and  perma- 
nent diminution  of  the  vaKie  of  the  property,  and  in  an  action 
for  erecting  a  wall,  whereby  the  plaintiff's  lights  were  obstructed, 
the  declaration  counting  for  the  plaintiff  as  reversioner,  it  was 
insisted  that  a  temporary  nuisance  could  not  be  an  injury  to 
the  inheritance ;  but  the  court  held  otherwise,  being  of  opinion 
that  an  action  might  be  brought  by  the  tenant  in  respect  of  his 
possession,^  and  by  the  landlord  or  reversioner  in  respect  of  his 
inheritance,  for  the  injury  done  to  the  value  of  it.f^  And  it  is 
now  well  settled  that,  if  the  act  complained  of  works  any  injury 
to  the  inheritance,  or  affects  in  any  way  the  reversioner's  title, 
the  law  will  remiuierate  him  in  damages.^  ^  But  as  it  is  evident 
that  injuries  of  this  character  are  often  of  a  nature  very  diflicult 
to  be  estimated,  the  courts  have  uniformly  exhibited  great  cau- 
tion in  requiring  the  fact  of  damage  to  the  reversionary  interest 
to  be  clearly  established.  Thus  it  is  held  that,  in  actions  of  this 
nature,  it  must  be  distinctly  averred  in  the  declaration  that  the 
act  complained  of  has  been  done  to  the  damage  of  the  reversion, 

that  the  owner  of  real  estate  in  the  possession  mine  estates  at  will,  this  distinction  is  held  to 

of  a  lessee,  other  than  at  will,  could  not  main-  be   done   away,    and   case   is   considered    the 

tain  trespass  for  an  injury  to  his  reversionary  proper  remedy  for  any  injury  to  the  landlord's 

interest,  and  that  case  was  the  only  remedy,  reversionary  interest  in  estates  at  will  as  well 

Licnow   V.    Ritchie,  8  Pick.  235  ;  but   if  the  as  others.     French  v.  Fuller,  23  Pick.  104. 

lessee  were  at  will  only,  it  was  held  that  tres-         *  Post,  153. 

pass  would  lie.     Now,  however,  since  the  Re-        t  Jesser  v.  Gifford,  4  Burr.  2141. 

vised    Statutes,  ch.   60,  .§  26,  requiring   three         t  Shadwell  v.  Plutchinson,  3  Car.  &  Payne, 

months'  notice  to  be  given  in  order  to  deter-  615 ;  S.  C.  4  Car.  &  Payne,  333. 

1  In  an  action  by  the  tenant  for  life  for  damages  to  the  estate,  the  New  York  Superior  Court 
at  special  term  lately  held  tliat  the  present  value  of  the  rents  and  jirotits  of  the  premises, 
multiplied  by  tlie  probable  numl)er  of  years  of  the  plaintiff's  life,  exceeded  the  proper  measure  of 
damages,  and  that  from  the  amount  thus  obtained  a  deduction  must  be  made  for  taxes,  repairs, 
insurance,  and  a  rebate  of  the  interest.  Greer  v.  The  Mayor  of  N.  Y.  1  Ab.  Pr.  R.  (N.  S.) 
206. 

2  So  in  an  action  of  trespass  for  cutting  down  and  carrying  off  trees,  one  having  an  estate  for 
life  in  possession  in  a  term  for  99  years,  and  the  reversion  after  the  expiration  of  the  term,  was 
held  entitled  to  the  whole  value  of  the  timber,  although  the  holder  of  an  intermediate  estate 
could  also  bring  an  action  on  the  case  in  the  nature  of  waste  for  the  same  act,  and  recover  dam- 
ages to  the  extent  of  the  diminution  of  the  value  it  occasioned  to  the  expectancy.  Bennett  v. 
Thompson,  13  Ired.  (N.  C.)  146. 

**  Schnable  v.  Koehler,  28  Penn.  St.  181.  The  action  of  trespass  to  real  as  well  as  personal 
property  is  a  possessory  action  (ante,  134).  A  party  in  possession  is  prima  facie  the  owner,  and 
that  possession  will  entitle  him  to  recover  to  the  full  extent  of  the  injury,  unless  the  defendant 
show  something  in  mitigation  of  the  damages.  If  there  is  a  reversionary  interest  entitling  the 
revirsioner  to  an  action  for  damages  to  the  freehold  affecting  that  interest,  the  trespasser  must 
show  that  there  is  such  a  reversioner,  and  that  the  damages  should  be  mitigated,  becanse  the 
defendant  is  answerable  over  for  the  same  injury  to  another  person.  Todd  v.  Jackson,  2  Dutcher 
(N.  J.),  525.  The  true  rule  of  damages  in  an  action  on  the  case  brouglit  by  a  reversioner  on 
account  of  injury  done  to  the  premises,  is  the  amount  of  injury  done  to  the  estate  in  reversion. 
Dutro  V.  Wilson,  4  Ohio  St.  101. 

In  an  action  by  a  reversioner  for  damages  done  to  the  reversion,  by  cutting  off  the  eaves  of  a 
building  belonging  to  him,  and  by  erecting  a  wall  with  a  drip  over  his  premises,  it  was  held, 
that  as  there  might  be  repeated  actions  for  continuing  the  nuisance,  evidence  for  the  purpose  of 
showing  the  diminution  in  the  salable  value  of  tlie  premises  should  be  rejected.  Bathishill  v. 
Reed,  37  Eng.  L.  &  E.  317.  See  also,  on  the  measure  of  damages  in  these  cases,  Smith  j;. 
Peet,  9  Exch.  161. 


CH.  v.]  TRESPASS  TO  REAL  TROPERTT.  151 

or  must  state  an  injury  of  such  permanent  nature  as  to  be  neces- 
sarily injurious  to  the  reversion  ;  ^  and  where  a  verdict  was 
obtained  on  a  declaration  alleging  that  the  defendant  had  con- 
structed a  wall  so  as  to  overhang  the  yard  of  Avhich  the  plaintiff 
was  reversioner,  and  to  produce  a  water  drip  in  the  yard,  Init 
without  alleging  any  injury  to  the  plaintiff's  reversionary  estate 
and  interest  in  the  premises,  the  judgment  was  arrested  by  the 
King's  Bench  * 

But  building  a  roof  Avith  eaves  which  discharge  rain-  [140] 
water  by  a  spout  into  the  adjoining  premises  is  an  injury 
for  which  the  landlord  of  such  premises  may  recover  as  rever- 
sioner, while  they  are  under  demise,  if  the  jury  think  there  is 
a  damage  to  the  reversion.! 

So  again,  where  the  defendant,  being  a  lessee  for  years,  with- 
out leave  opened  a  door  in  the  house  owned  by  the  .plaintiff 
as  landlord,  and  the  jury  found  that  the  house  was  not  in  any 
way  weakened  or  injured  by  the  act,  the  court  refused  to  allow 
a  verdict  for  nominal  damages  to  be  entered,  and  directed  a 
new  trial  to  be  had  on  this  point ;  saying,  "  We  cannot  say  that 
the  opening  of  the  door  in  this  case  affects  the  evidence  of  the 
plaintiff's  title.  That  is  a  question  of  fact."$  And  so  a  rever- 
sioner cannot  maintain  an  action  on  the  case  against  a  stranger 
for  merely  entering  upon  his  land  held  by  a  tenant  on  lease, 
though  the  entry  be  made  in  exercise  of  an  alleged  right  of 
way.§  ^  So,  again,  it  has  been  held  that  the  obstruction  of  a 
public  navigable  river  is  not  a  damage  to  a  reversioner  out  of 
possession  of  premises  abutting  tliereon.|| 

Action  by  Lessee.  —  Where  the  plaintiff  was  the  lessee  for  years 
of  certain  premises  at  an  annual  rent,  with  liberty  to  dig  half 
an  acre  of  brick  earth  annually,  and  covenanted  that  he  would 
not  dig  more,  or  that  if  he  did  he  would  pay  an  increased  rent 
of  £375  per  half  acre,  being  after  the  rate  that  all  the  brick 
earth  was  sold  for,  and  a  stranger  dug  and  took  away  brick 
earth  ;  the  lessee  recovered  against  him  the  full  value  of  the 
earth  dug,  on  the  ground  that  the  brick  earth  was  by  the  terms 
of  the  lease  sold  to  the  lessee,  as  well  as  that  the  tenant  would 
be  liable  over  for  the  waste  to  the  landlord ;  and  on  argument 
this  was  held  right.^ 

*  Jackson  v.  Pesked,  1  M.  &  Sel.  234.  §  Baxter  v.  Tavlor,  4  Barn.  &  Adol.  72. 

t  Tucker  V.  Newman,  11  Ail.  &  Ell.  40.  ||  Dobson  v.  Blackmorc,  9  Q.  B.  991. 

t  Young  V.  Spencer,  10  Barn.  &  Cres.  145.  ^  Attersoll  v.  Stevens,  1  Taunt.  182. 


1  Tinsman  v.  The  Belvidere  Delaware  Railroad  Co.  1  Dutcher  (N.  J.),  255. 

'■2  But  compare  Tinsman  v.  The  Belvidere  Delaware  Railroad  Co.  1  Dutcher  (N.  J.),  255. 


152 


DAMAGES    IN    REAL   ACTIONS. 


[CH.    V. 


Nuisance.  —  We  come  next  to  the  subject  of  nuisances.  A 
great  deal  of  learning  will  be  found  in  the  books  as  to  the  pre- 
cise nature  of  a  nuisance,  and  as  to  what  can  be  so  considered 
and  treated.  That  examination  woidd,  however,  fall  beyond  the 
limits  of  this  treatise.  "  Whatsoever,"  says  Blackstone,* 
[141]  "unlawfully  annoys  or  doth  damage  to  another,  is  a 
nuisance  ;  "  and  the  remedies  for  private  nuisances  he 
declares  f  to  be,  —  "  an  action  on  the  case  for  damages,  in  which 
damages  only  are  recoverable ;  and  an  assize  of  nuisance,  by 
which  not  only  are  damages  recovered,  but  the  nuisance  is  it- 
self abated."! 

The  ancient  real  action  which  abated  the  nuisance  is,  as  will 
be  readily  seen,  one  peculiar  in  its  character ;  but  the  action 
on  the  case,  which  simply  gives  damages  for  the  infringement 
of  the  plaintiff's  right,  falls  strictly  within  the  class  which  we 
are  now  considering,  of  disturbances  of  the  enjoyment  of  real 
estate  as  vindicated  in  the  ordinary  actions  of  trespass  or  case, 
and  the  measure  of  compensation  is  to  be  regulated  by  the 
same  principles.§ 

We  have  already  seen,||  that  if  the  nuisance  is  so  general  as 
to  be  a  common  or  public  nuisance,  the  remedy  is  by  indict- 
ment, not  by  private  suit.  But  every  individual  who  suffers 
actual  damage  from  a  common  nuisance  may  maintain  an  action 
for  his  own  particular  injury,  though  there  may  be  others 
equally  damnified.^  It  is  essential,  however,  to  allege  and 
prove  special  damage.  So  it  was  very  early  held  in  England. 
Thus  in  an  action  for  stopping  up  a  highway :  "  All  the  court 
agreed  that  when  an  action  arises  from  a  public  nuisance,  there 
must  be  a  special  damage  ;  for  he  that  doeth  nuisance  is  pun- 
ishable at  a  suit  of  the  public,  and  to  allow  all  private  persons 
their  actions,  without  special  damage,  would  create  an  mfinite 
and  endless  multiplicity  of  suits."]}  ^ 


*  Book  iii.  ch.  i.  p.  51. 

t  Book  iii.  ch.  xiii.  p.  220. 

t  This  latter  remedy  has  been  in  New  York 
retained  and  simplified  (4  Kent,  70,  note)  by  the 
provisions  of  the  Eevised  Statutes  (part  iii.  ch. 
V.  title  4,  vol.  2,  p.  256),  which  prescribe  the 
form  of  the  writ,  directing  the  jnry  that  in- 
qnires  of  the  nuisance,  if  they  find  for  the 
plaintiff  to  assess  the  damages  ;  and  which 
also  declare  that  the  judgment,  in  case  the 
plaintiff'  prevails,  shall  be  as  heretofore  accus- 
tomed, that  the  nuisance  be  removed,  and  that 
the  plaintiff  recover  the  damages  occasioned 
thereby. 


§  To  bring  an  assize  of  nuisance,  it  was 
necessary  that  the  ])laintiff  should  show  a 
freehold  estate  in  the  premises ;  but  in  the  ac- 
tion on  the  case,  it  is  only  necessary  to  prove 
that  he  is  in  possession.  Cornes  v.  Harris,  1 
Comstock,  22S.  The  remedy  by  assize  of 
nuisance  has  long  been  obsolete  in  England, 
and  there  is  said  to  have  been  but  one  such 
writ  prosecuted  in  New  York.  Ivintz  v.  Mc- 
Ncal,  1  Denio,  436. 

II  Ante,  30  and  32,  and  cases  there  cited. 

TT  Iveson  V.  Moore,  1  Salk.  15. 


1  Smith  V.  Lockwood,  13  Barb.  209. 

2  Winterbottom  v.  Ld.  Derby,  2  L.  R.  (Exch.)  316. 


CH.    v.]  NUISANCES.  153 

So,  too,  in  this  country  :  "  If  a  person,"  said  the  learned 
Chancellor  Walworth,  in  the  Court  of  Errors  in  New 
York,*  "  sustains  no  damages  by  the  erection  of  a  nui-  [142] 
sance,  whether  direct  or  consequential,  but  that  which 
the  law  presumes  every  citizen  to  sustain  :  because  it  is  a  com- 
mon nuisance,  no  action  will  lie  ;  but  every  individual  who  re- 
ceives actual  damage  from  a  nuisance  may  maintain  a  private 
suit  for  his  own  injury,  although  there  may  be  many  others  in 
the  same  situation."!  It  has  been  questioned  whether  the  in- 
jury from  a  nuisance,  to  authorize  a  private  suit,  must  be  direct, 
or  whether  a  consequential  injury  would  suffice  ;  but  it  seems 
now  settled  that  it  is  sufficient  if  peculiar  or  special  damage 
result  therefrom,  though  it  be  consequential  and  not  direct. 
So,  where  in  consequence  of  the  defendant's  mooring  a  barge 
across  a  canal  the  plaintiffs  were  obliged  to  carry  their  goods 
overland.!  But  a  claim  for  damages  against  a  turnpike  com- 
pany, arising  from  the  plaintiff's  not  attempting  at  certain  times 
to  travel  a  public  highway  because  of  its  general  badness,  is 
hypothetical,  and  does  not  constitute  such  peculiar  damage  as 
to  give  a  private  action  for  a  public  nuisance.§ 

And  in  Connecticut,  where  the  grievance  complained  of  con- 
sisted in  the  erection  by  the  defendant  of  a  dam  in  a  public 
navigable  creek,  by  means  of  which  the  plaintiff  was  prevented 
from  passing  along  such  creek  from  his  residence  above  to  the 
land  below,  and  the  converse,  it  was  held  that  such  obstruction 
was  not  the  subject  of  a  private  action.|| 

The  general  principle  which  we  have  heretofore  considered,^ 
limiting  liability  for  damages  to  those  consequences  of  the  act 
complained  of  which  a  due  exercise  of  caution  could  not  avoid 
or  obviate,  has  been  applied  to  nuisances ;  and  it  is  well 
settled,  that  to  entitle  the  plaintiff  to  an  action  for  dam-  [143] 
ages  resulting  from  this  cause,  he  must  be  able  to  show 
that  he  acted  with  common  and  ordinary  caution,  or,  at  all 

*  Lansing  v.  Smith,  8  Cow.  146;  4  Wend.  9.  is  only  by  indictment.     Conncils  of  Eeading 

See  also,  to  S.  P.,  Lansing  v.  Wiswall,  5  Denio,  v.  Commonwealth,  11  Penn.  State  E.  196. 
213  ;  Dougherty  v.  Bunting,  1  Sand.  Sup.  Ct.         t  See  People  v.  Corporation  of  Albany,  11 

Rep.  1  ;  and  see  also,  First  Baptist  Church  v.  Wend.  5.39,  to  same  point ;  Allen  i\  Ormond, 

Sch'y  &  Troy  R.  R.  Co.  5  Barb.  S.  C.  R.  79 ;  8  East,  4 ;  and  Story  v.  Hammond,  4  Ohio, 

Irwin  V.  Dixon,  9  Howard,  10.  See  the  subject  376  ;    Simpson   v.    Seavy,   8    Greenleaf,    138  ; 

considered  in  Dobson  v.  Blackmore,  9  Q.  B.  City  of  Georgetown  v.  Alexandria  Canal  Co. 

991  ;  where  it  is  held  that  the  obstruction  of  a  12  Petei's,  91.     In  South  Carolina,  see  Carey 

public  navigable  river  is  not  a  damage  to  a  v.  Brooks,  1  Hill's  Rep.  (S.  C.)  365. 
reversioner  out  of  possession  of  premises  abutting         \  Rose  v.  Miles,  4  M.  &  S.  101. 
thereon.     So   in   regard   to   mandamus,  if  a         §  Baxter    v.  Winooski    Turnpike    Co.    22 

nuisance  is  not  more  injurious  to  the  relators  Verm.  114. 

than  to  the  inhabitants  at  large,  the  remedy        ||  Seeley  v.  Bishop,  19  Conn.  128. 

1  Ante,  95. 


154  DAMAGES    IN    REAL   ACTIONS.  [CH.    V. 

events,  that  his  want  of  care  has  not  increased  the  injury.^  So 
in  the  King's  Bench,  where  the  plahitiflf,  who  was  riding  vio- 
lently on  a  public  highway,  was  thrown  down  and  injured  by 
means  of  an  obstruction  placed  there  by  the  defendant,  it  was 
proved,  that  if  the  plaintiff  had  not  been  riding  very  hard  he 
might  have  seen  the  obstruction  and  avoided  it ;  and  on  this 
ground  he  failed  to  recover.  Lord  Ellenborough  saying,  "  A 
party  is  not  to  cast  himself  upon  an  obstruction  which  has  been 
made  by  the  fault  of  another,  and  avail  himself  of  it,  if  he  do 
not  himself  use  common  and  ordinary  caution  to  be  in  the 
right ;  one  person's  being  in  the  fault  will  not  dispense  with 
another's  using  ordinary  care  for  himself."*  And  the  same 
principle  has  been  recognized  in  various  cases  in  England  and 
in  this  country.!  We  shall  have  occasion  to  consider  this  sub- 
ject again  when  we  come  to  speak  of  the  measure  of  damages 
in  cases  of  trespass  generally.! 

In  a  case  in  Massachusetts,  where  an  action  on  the  case  was 
brought  for  a  nuisance  upon  the  plaintiff's  land,  occasioned  by 
the  discharge  of  impure  water  from  the  defendant's  brewery 
into  the  plaintiff's  clay  pits,  through  a  drain  which  the  defend- 
ant dug  from  his  premises  to  those  of  the  plaintiff,  it  appeared 
that  the  water  had  become  so  stagnant  and  offensive  as  to  be 
complained  of  as  a  nuisance,  and  that  the  Boston  Board  of 
Health  had  ordered  one  of  the  clay  pits  to  be  filled  up  by  the 
plaintiff;  and  it  was  held  that  the  expense  of  filling  up  the  pit 
should  be  included  in  the  assessment  of  damages.§^ 

In  Pennsylvania,  it  has  been  decided  that  in  an  action  on  the 
case  for  a  nuisance,  the  defendant  could  not  be  made  liable  for 
an  erroneous  opinion  that  a  dam  erected  by  him  was  in  proper 
order  for  the  passage  of  vessels.|| 

In  the  same  State  consequential  injuries  to  property  to 
[144]  which  a  private  alley  is  not  appurtenant,  are  inadmissible 
in  evidence  in  an  action  for  a  nuisance  destroying  the  use 
of  the  alley.^ 

*  Butterfield    v.    Forrester,    11    East,    60;  Wels.  246;  and  also  in  Davics  "w.  Mann,  10 

Carlisle  v.  Holton,  .3  La.  Ann.  R.  48.  Mces.  &  Wels.  .546. 

t  Flower  v.  Adam,  2  Taunt.  314  ;  Smith  v.  J  Post,  ch.  xviii. 

Smith,  2  Pickering,  621.    Whcaton's  Sehvyn's  §  Shaw  v.  Cummiskev,  7  Pick.  86. 

Nisi  Prius,  vol.  i'i.  p.  1139.    The  doctrine  of  ||  Roush  v.  Walter,  10  Watts,  86. 

Butterfield  i\  Forrester  was  expressly   recog-  ^  Commissioners  of  Kensington  v.  Wood, 

nized  by  the  English  Court  of  Exchequer,  in  10  Penn.  State  R.  93. 
Bridge  v.    The  Grand  J.  R.  Co.  3  Mees.   & 


1  But  see  The  Vicksburg  and  Jackson  Railroad  Co.  v.  Patton,  31  Miss.  1.56  ;  Kerwhacker  v. 
The  Cleveland,  Columbus,  and  Cincinnati^Railroad  Co.  3  Ohio  St.  172  ;  The  Central  Railroad 
Co.  V.  Moore,  4  Zabr.  (N.  J.)  824. 

2  Compare  Carhart  v.  The  Auburn  Gas  Light  Company,  22  Barb.  (N.  Y.)  297. 


Cn.  v.]  NUISANCES.  155 

Continuing  Nuisances.  —  "Every  continuance  of  a  nuisance 
is  held  to  be  a  fresh  one,  and  therefore  a  fresh  action  will  lie."  * 
"And,"  says  Blackstone,t  speaking  of  the  same  subject,  "very 
exemplary  damages  will  probably  be  given,  if,  after  one  verdict 
a^ninst  him,  the  defendant  has  the  hardiness  to  continue  it."  t 
On  this  ground,  that  suit  can  be  brought  totics  qiioiies,  it  has  been 
decided  that  in  an  action  on  the  case  for  a  nuisance,  damages 
sustained  subsequent  to  the  bringing  of  the  action,  are  not 
recoverable.^;  ^ 

In  regard  to  permanent  or  continuing  nuisances,  it  has  been 
questioned  how  far  the  defendant  is  liable  after  he  has  parted 
with  the  possession  of  or  the  title  to  the  premises.  As  a  general 
rule,  the  erector  of  the  nuisance  is  answerable  for  the  contin- 
uance of  it,  not  only  where  he  has  demised  the  property  with  a 
nuisance  on  it,  reserving  rent,  but  where  the  erection  was  made 
on  the  land  of  another,  and  though  he  has  no  right  to  enter  for 
the  purpose  of  removing  it.||  On  this  point  it  has  been  held  in 
New  York,  that  where  the  defendant  has  conveyed  the 
lands  on  which  the  nuisance  had  been  placed  by  him,  and  [145] 
surrendered  the  possession  to  his  grantee,  before  the  time 
when  the  plaintiff  acquired  title  or  possession  of  the  lands 
which  were  subsequently  injured,  and  without  any  covenant  of 
warranty,  or  agreement  to  uphold  the  grantee  in  the  occupancy 
of  the  premises,  no  action  will  lie  against  such  former  owner  and 
erector  of  the  nuisance.  But  though  the  defendant  is  out  of 
possession  at  the  time  the  injury  was  committed,  and  another 
person  has  the  entire  possession,  still,  if  the  defendant  was  the 
erector  of  the  nuisance,  and  owner  of  the  premises,  and  under 

*  3  Black.  Com.  220  ;  Vedder  v.  Vedder,  Mass.  74  ;  Fish  v.  Dodge,  4  Dcnio,  311.    But, 

1    Denio,    257.     So,    also,    in    New    Jersey,  though    there    is    a   legal    obligation    to    dis- 

Delaware  and  Raritan  Canal  Co.  v.  Wright,  1  continue  a  trespass  or  remove  a  nuisance,  no 

Zabriskie,  469.  such  obligation  lies  on  a  trespasser  to  replace 

t  Book  iii.  ch.  13.  what  he  had  pulled  down  or  destroyed  upon 

X  "  If  a  party,  against  whom  a  verdict  in  an  the  land  of  another,   though  he  is   liable  in 

action   of  this  kind  has  been  recovered,  does  trespass  to  compensate  in  damages  for  the  loss 

not  abate  the  nuisance,  another  action  may  be  sustained.     Therefore,  where  the  owner  of  a 

brought  for  continuing  the  nuisance,  in  which  coal  mine  excavated  as  f;\r  as  the  boundary, 

the  jury  will  be  directed  to  give  large  dam-  and  continued  the  excavation  wrongfully  into 

ages."     2  Wheaton's  Selw.  N.  P.  1141.  the  neighboring  mine,  leaving  an  aperture  in 

§  Duncan  v.  Marldey,  1  Harper,  276  ;  Blunt  the  coal  of  that  mine,  through  which  water 

V.   McCormick,  3  Denio,  283;  and  vide  ante,  passed  and  did  damage,  held  that,  though  the 

108,  as  to  damages  resulting  from  nuisances  party  excavating   was   liable   in    trespass   for 

after  suit  brought.     And  see,  to  S.  P.,  Thayer  breaking  into  the  neighboring  mine,  he  was 

V.  Brooks,  17  Ohio,  489.  not  liable  in  case  for  omitting  to  close  up  the 

II  llosewell  V.  Prior,  12  Mod.  635  ;    1  Lord  aperture  on  his  neighbor's  soil,  though  con- 

Eaj^m.  713;  and  2  Salk.  460  ;  S.  C.  Thomp-  tinning  damage  resulted.    Clegg  v.  Dearden, 

son  t'.  Gibson,  7  Mees.  &  W.  456  ;  Holmes  v.  12  Q.  B.  576. 
Wilson,  10  A.  &  E.  503  ;  Staple  v.  Spring,  10 

1  As  to  the  principle  of  valuation  of  damages  to  real  estate  caused  by  the  carrying  on  of  a 
noxious  trade  on  adjoining  land,  see  Houghton  v.  Bankhard,  3  L.  T.  K.  (N.  S.)  266,  (V.  C. 
Wood's  Court). 


156  DAMAGES   IN   REAL   ACTIONS.  [CH.    V. 

any  agreement  to  uphold  the  occupant  in  possession,  or  if  he 
have  conveyed  the  premises  with  warranty,  —  the  action  will  lie 
against  him  on  the  ground  that,  by  such  relation  with  the  occu- 
pant, he  has  affirmed  the  continuance  of  the  nuisance,  and  that 
it  may  be  said  to  be  a  continuance  by  himself;  and  in  such  case 
he  is  liable,  of  course,  for  damages  subsequent  to  the  conveyance 
and  down  to  the  commencement  of  the  suit* 

Trespass  de  bonis  asportatis. — Injuries  to  real  estate  are 
sometimes  redressed  by  actions  of  trespass  de  bonis  asportatis,  or 
trover,  as  in  the  case  of  coal  mines,  or  destruction  of  growing 
trees ;  f  but  this  class  of  cases  will  fall  most  properly  under  the 
head  of  torts  to  personal  property. 

Distraint  of  Cattle.  —  It  would  be  improper,  while  speaking 
of  trespasses  to  real  property,  to  omit  mention  of  the  right 
given  by  the  English  law  to  distrain  beasts  doing  damage,  or  in 
the  old  Norman  French,  "  damage  feasants  The  right  is  strictly 
limited  to  the  time  when  the  beasts  are  actually  committing  the 
trespass  :  "  The  beasts  must  be  damage-feasant  at  the  time  of 
the  distress  ;  and  if  they  were  damage-feasant  yesterday  and 
again  to-day,  they  can  only  be  distrained  for  the  damage  they 
are  doing  when  they  are  distrained.  And  if  many  cattle  are 
doing  damage,  a  man  cannot  take  one  of  them  as  a  distress  for 

the  whole  damage  ;  but  he  may  distrain  one  of  them  for 
[146]  its  own  damage,  and  bring  an  action  of  trespass  for  the 

damage  done  by  the  rest."  $ 

Double  and  Treble  Damages.  —  Another  class  of  injuries 
to  real  estate,  according  to  most  of  the  systems  which  derive 
their  origin  from  the  English  jurisprudence,  is  taken  under  the 
special  protection  of  the  statute  law,  and  redressed  by  the  inflic- 
tion of  double  or  treble  damages ;  but  of  these  we  shall  speak 
when  we  come  to  the  subject  of  damages  as  regulated  by 
statutes. 

AVe  close  this  subject  with  the  consideration  of  Waste. 

*  Blunt  V.  Aikin,  15  Wendell,  522;  Wag-  was   held    that   the  plaintiff  was   entitled   to 

goner  v.  Jermaine,  3  Denio,  306  ;  Staple  v.  nonainal   damages,    though   no   proof  of   the 

Spring,  10  Mass.  Rep.  74  ;  Angell  on  Water-  value   was   given   at   the   trial.      Cotterill   v. 

coui'ses,  152,  and  cases  there  cited.     A  sub-  Hobby,  4  Barn.  &  Cres.  465.    Sec  Wild  v. 

sequent  purchaser  of  premises  injured  by  a  Holt,  9  Mees.  &  Wels.  672  ;  Morgan  v.  Powell, 

nuisance  erected  previous  to  his  purchase,  has  3  Q.  B.  Rep.  278  ;  Martin  v.  Porter,  5  Mees. 

a  remedy  for  the  injury  occasioned  by  the  con-  &  Wels.  351  ;  and  vide;wAt,  cli.  xxii. 
tinuance  of  the  nuisance.      Brady  v.  Weeks,  3         t  Hoskins  v.   Robins,  2   Saund.  327  ;  Vas- 

Barb.  (N.  Y.)  157.  por  v.   Edwards,    12   Mod.    660;  Clement  v. 

t  So   where   a   reversioner   brought  trover  Milner,  3  Esp.  95 ;  Wormcr  v.  Biggs,  2  Car. 

against  his  tenant  for  cutting  some  branches  &  Kir.  31. 
off  the  trees  growing  on  the  demised  close,  it 


CH.    v.]  WASTE.  157 

Waste.  —  "  Waste,  vastiim,''  says  Mr.  Justice  Blackstone,*  "  is  a 
spoil  or  destruction  in  houses,  gardens,  trees,  or  other  corporeal 
hereditaments,  to  the  disherison  of  him  that  hath  the  remainder, 
or  reversion  in  fee  simple,  or  fee  tail."  This  subject  might 
perhaps,  be  classed  among  actions  for  the  recovery  of  real  es- 
tate ;  but  as  the  proceeding  does  not  always  result  in  a  change 
of  the  property,  I  have  thought  it  more  properly  classified  among 
suits  brought  for  interferences  with  its  enjoyment.^  The  punish- 
ment for  waste  was  by  common  law,  and  by  the  statute  of  Marl- 
bridge  f  single  damages  only ;  but  by  the  statute  of  Gloucester^ 
it  was  provided  that  the  tenants  therein  mentioned  should  for- 
feit the  place  wasted,  and  treble  damages  to  him  that  had  the 
inheritance. 

At  common  law  the  action  of  waste  lay  against  tenants  in 
dower  and  guardians  ;  and  the  better  opinion  seems  to  be  that  it 
also  lay  against  a  tenant  by  the  courtesy ;  §  but  by  the  statute 
of  Marlbridge  and  the  statute  of  Gloucester,  above  referred  to,  it 
was  given  against  every  person  holding  a  lease  for  life  or  lives, 
or  for  years ;  and  by  the  latter  act,  the  damages  which  before 
were  single,  were  in  the  cases  specified  in  that  statute 
trebled.||  Damages  were  not,  however,  recoverable  for  [147] 
waste  committed  pending  the  suit ;  and  these  were  given 
in  an  action  of  estrepement.^ 

In  New  York,  an  action  for  waste  is  given  by  statute  **  against 
guardians,  tenants  by  the  courtesy,  tenants  in  dower,  for  life  or 
years,  or  their  assigns ;  and  by  the  same  statute,  if  default  be 
made,  or  if  any  issue  of  fact  is  awarded,  "  the  jury  that  inquire 
of  the  waste  done,  shall  also  assess  the  damages  occasioned 
thereby."  If  the  action  be  brought  by  any  other  than  a  tenant 
in  common  or  joint  tenant,  the  plaintiff  recovers  the  place 

*  Comment,  book  ii.  ch.  18,  §  6,  p.  281.  See  yield /«//  damage,  and  shall  be  punished  by 

also,   the  common  law  with  regard  to  waste  amei'ciament  grievously." 

very  learnedly  expounded  by  Lord  Chief  Jus-  Statuta  Gloucestr'.     Statutes  made  at  Glou- 

tice  Eyre,  in  Jetterson  v.  Bishop  of  Durliam,  cester,  6  Edw.  I.  a.  d.  1278.    "  It  is  provided, 

1  Bos.  &  Pull.  120;  and  Story's  Equity  Juris,  also,  that  a  man  from  henceforth  shall  have  a 

§  909.  writ  of  waste,  etc.,  against  him  that  holdeth, 

t  52  Hen.  III.  ch.  23.  by  law  of  England  or  otherwise,  for  term  of 

J  6  Edw.  I.  ch.  5.  life  or  for  term  of  years,  or  a  woman  in  dower. 

§  Sayer   on   Damages,   ch.   7,  29  ;  2  Inst.  And  he  which  shall  be  attainted  of  waste  shall 

145,299,305,300;    Bl.  Com.   ii.  282,   ch.  18.  leese  (perde)   the  thing   that  he   hath  wasted, 

II  Statutuin  de  Marlheirie.     Statutes  made  at  and  moreover  shall  recompense  thrice  so  much- as 

Marlbridge,  52  Hen.  III.   a.  d.   1267,  ch.   23.  the  waste  shall  be  taxed  at." 

"  Also,  Fermors,  during  their  terms  shall  not  T[  Sayer  on  Damages,  ch.  7,  34. 

make  waste,  etc.,  etc.,  ....  which   thing  if  **  2  R.  S.  335,  part  iii.  ch.  v.  tit.  5. 
they   do,  and  thereof  be  convicted,  they  shall 


1  In  an  action  in  the  nature  of  waste  for  cutting  down  trees  on  an  estate,  the  damages  are 
not  necessarily  confined  to  the  value  of  the  timber  removed,  but  may  include  also  the  perma- 
nent injury  to  the  inheritance.     Harder  v.  Harder,  26  Barb.  409. 


158  DAMAGES    IN    REAL    ACTIONS.  [CH.    V. 

wasted,  and  treble  the  damages  assessed  by  the  jury.  If  it  be 
brought  by  a  tenant  in  comnion,  or  joint  tenant,  against  his  co- 
tenant,  the  plaintiff'  may  elect  to  take  treble  damages  or  to  have 
j)artition  of  the  premises ;  and  in  case  he  elects  the  latter,  the 
object  is  to  be  effected  by  actual  partition  or  sale,  and  in  either 
case  the  single  damages  found  by  the  jury  are  to  be  deducted 
from  the  defendant's  share.*  Damages  were  not  recoverable  at 
common  law,  as  we  have  said,  for  waste  committed  pending  the 
action  of  waste ;  and  this  is  provided  for  by  the  same  statute, 
which  declares,  that  after  the  commencement  of  any  action  for 
the  recovery  of  land  or  for  its  possession,  the  court  may,  by 
order,  restrain  the  defendant  from  committing  waste ;  but  in  the 
action  of  waste  itself,  the  positive  language  of  the  above  pro- 
vision, probably  goes  far  enough  to  give  damages  for  waste  com- 
mitted pending  the  suit.  The  effect  of  this  statute  has  been 
saidf  to  be  to  give  the  Supreme  Court  the  same  power  to 
[148]  restrain  and  prevent  waste,  which  is  exercised  by  the 
Court  of  Chancery;  and  in  this  case,  and  in  another, t  it 
was  held  that  the  order  might  be  made  ex  parte.  And  in  a  later 
case  it  has  been  said§  to  be  a  copy  of  the  statute  of  Marlbridge.|| 
Independent  of  the  statute,  however,  there  is  no  doubt  that  an 
action  on  the  case  can  always  be  maintained,  in  which  the  party 
injured  will  recover  the  damages  which  he  has  actually  sus- 
tained."[y  In  such  a  proceeding,  however,  the  forfeiture  of  the 
place  wasted  is  waived,  at  least  as  far  as  the  proceeding  itself  is 
concerned.^ 

The  question  whether,  as  matter  of  law,  waste  has  been  com- 
mitted, is  very  closely  connected  with  the  question  of  damages 
in  this  action ;  and  on  this  point  many  cases  have  been  decided. 
But  the  inquiry  does  not  come  properly  within  the  scope  of  the 
present  work.** 

In  Massachusetts,  treble  damages  are  given  for  waste,  and 
they  may  be  recovered  in  an  action  for  debt.ff  And  the  statute 
of  Gloucester,  in  regard  to  waste,  has  been  declared  to  be  a  part 
of  the  law  of  the  State,  except  in  regard  to  tenants  in  dower.:|:$ 

*  By  1   R.  S.  141,  2d  edition,  remainder-  vania,  sec  Dickinson's  Lessee  v.  Nicholson,  2 

men  and  reversioners  may  bring  waste,  not-  Yeates,  281. 

witlistanding  an  intervening  estate  for  years.  1[  Winship  v.  Pitts,  3  Paige,  259. 

t  Savage,  J.,  in  The  People  v.  Alberty,  11  **  For  cases  of   this   nature,  see   Comj^n's 

Wend.  162.  Digest,   tit.  Waste;    Harrison's  Digest;    and 

%  Bnsh  V.  Phillips,  3  Wend.  428.  Livingston  v.  Reynolds,  2G  Wend.  115. 

§  ^\  Nelson,  J.,  in  Carris  v.  Ingalls,  12  tt  Reed  v.  Davis,  9  Pick.  514. 

Wend.' 70.  \X  Sackett  v.    Sackett,    8   Pick.    309.      See 

II  As    to   cstrepemcnt  of  waste  in  Pennsyl-  Padelford  v.  Padelford,  7  Pick.  152,  and  par- 

1  In  an  action  brought  by  a  remaindei'-man  in  fee  for  injury  to  the  inheritance,  the  inquiry 
should  not  embrace  the  present  damage  to  the  property.     Van  Deusen  v.  Young,  29  N.  Y.  9. 


CH.    v.]  WASTE.  159 

"  It  is  common  learning,"  said  Heath,  J.,  in  the  EngHsh  Com- 
mon Pleas,*  "  that  every  lessee  of  land,  whether  for  life  or  years, 
is  liable  in  an  action  of  waste  to  his  lessor  for  all  waste  done  on 
the  land  in  lease,  by  whomsoever  it  may  be  committed."  And 
this  has  been  recently  recognized  in  New  York.f  And  so  where 
land  had  been  demised  to  the  plaintiff  at  an  annual  rent,  for 
years,  with  liberty  to  dig  half  an  acre  of  brick  earth  annually, 
and  the  lessee  covenanted  that  he  would  not  dig  more,  or  if  he 
did,  that  he  would  pay  an  increased  rent  of  .£375  per  half 
acre,  "  being  after  the  same  rate  that  the  whole  brick  [149] 
earth  was  sold  for"  and  a  stranger  dug  and  took  away 
brick  earth,  it  w\as  held  that  the  lessee  should  recover  of  him 
the  full  value  of  it,  on  the  ground  that  the  brick  earth  was,  by 
the  terms  of  the  lease,  sold  to  the  tenant,  as  well  as  that  he 
w^ould  be  liable  over  for  the  waste,  to  his  landlord. 

In  the  action  of  waste  it  was  originally  necessary,  in  order  to 
entitle  the  plaintiff  to  judgment,  that  the  damages  found  should 
be  something  more  than  nominal ;  and  the  sum  of  three  shillings 
and  fourpence  appears  to  have  been  arbitrarily  fixed  on  as  the 
minimum  of  damage  which  would  authorize  a  joarty  to  bring 
such  action.t  This  doctrine  has  been  in  England  extended  to 
the  action  on  the  case  for  injury  to  the  reversion,  though  not  in 
reason  applicable.§  The  commutation  was  originally  introduced 
on  the  ground  that  in  the  action  of  waste  the  place  wasted  was 
forfeited,  and  it  was  thought  not  just  that  the  tenant  should  for- 
feit his  estate  for  every  trifling  act  of  waste  ;  but  in  actions  for 
injuries  to  the  reversionary  interest,  the  injury  complained  of 
maj^  be  merely  that  the  act  in  question  will  perhaps  be  after- 
wards relied  on  as  evidence  of  the  tenant's  absolute  property  in 
the  tenement ;  here  the  object  of  the  action  is  simply  to  assert 
the  reversioner's  right  of  property,  and  not  to  recover  dam- 
ages.|l 

Case  lies  by  reversioner  against  one  who  erects  a  dam  on  the 
adjacent  land  and  backs  the  water  on  the  plaintiff's  mill  race.^[ 
But  this  branch  of  our  subject  I  have  already  considered,  when 
treating  of  suits  brought  by  reversioners. 

Waste  is  well   known    by  the  name  of  degradations   in   the 

ticuliirly  as  to  what  is  waste.     In  Pcnnsylva-  |  Gov'r  of  Harrow  School  v.  Aldcrtou,  2 

nia,   as   to   what   is   waste,   see    Ilastinj^^s   v.  B.  &  ]*.  88. 

Cnuickleton,  3  Yeates,  261,  and  Shult  v.  Ear-  §  Rigg  v.  Parsons,  cited  2  East,  156. 

ker,  12  S.  &  R.  272.  ||  Pindar  v.  Wadsworth,   2  East,  154.     V. 

*  Attersoll   v.   Stevens,  1  Taunt.   182   and  Redfern  v.  Smith,  8  Moo.  443 ;  1  Bing.  392; 

198.  2  Bing.  262  ;   Gibbons   on  the  Law  of  Dilap- 

t  Cook  V.  Cliamplain  Transportation  Co.  1  idatioii  and  Nuisances,  78. 

Denio  R.  91.  T[  Ripka  v.  Sergeant,  7  Watts  &  Serg.  9. 


160 


DAMAGES    IN    REAL   ACTIONS. 


[CH. 


French  Law,  and  it  will  be  found  treated  of  in  the  Code  Civil 
under  the  proper  head  * 

The   question  of  the  measure   of  damages  for  waste 

[150]  committed  by  tenants,  often  arises  in  actions  of  covenant 

brought  on  the  lease  ;  and  we  may  have  occasion  to  recur 

to  the  subject  when  we  come  to  consider  personal  actions  of  this 

class. 


*  See  the  titles  of  Usufruit,  Art.  578,  et  sec;., 
et  Le  Contrat  do  Louage,  Art.  1708,  et  scg. 
Under  the  first  head  are  stated,  with  great 
care,  the  precise  acts  wliich  tiie  usut'ructuary 
can  do  without  committing  waste. 

I  am  favored  by  the  Hon.  E.  Fitch  Smith, 
First  Judge  of  the  Ontario  Common  Pleas, 
with  the  report  of  the  following  case  decided 
by  him.     Nottingham  v.  Osgood. 

I.  In  an  action  on  the  case  in  nature  of 
waste,  where  the  court  on  the  trial  instructed 
the  jury  on  the  subject  of  damages,  to  "  in- 
quire whether,  by  reason  of  the  additions  and 
alterations  made  by  the  defendant,  the  prem- 
ises were  rendered  less  or  more  valuable ;  if 
less  valuable  by  reason  thereof,  then  the  plain- 
tiff would  be  entitled  to  recover  the  actual 
damage  he  had  sustained,  to  be  ascertained  by 
the  jury  from  all  evidence  in  the  cause ;  but 
if,  from  the  evidence,  the  jury  should  be  satis- 
fied that  the  premises,  by  reason  of  such 
alterations  and  erections,  were  in  point  of 
fact  more  valuable, —  that  then,  although  the 
act  of  the  defendant  was  a  technical  wrong, 
yet  that  the  plaintiff,  under  such  circumstances, 
would  only  be  entitled  to  nominal  damages." 
Held  erroneous,  and  for  that  reason  a  new 
trial  ordered. 

II.  Where  a  tenant,  during  the  continu- 
ance of  his  term,  made  material  and  essential 
alteration  of  the  buildings,  and  erected  addi- 
tions without  the  consent  of  his  landlord  — 
held  that  he  was  not  entitled  to  any  remuner- 
ation for  the  materials  and  erections,  even 
although  the  general  value  of  the  premises 
were  thereby  enhanced ;  upon  the  principle 
that,  the  act  being  tortious,  he  could  not  claim 
any  benefit  or  remuneration  for  his  own 
wrong. 

III.  In  an  action  on  the  case  in  the  nature 
of  waste,  the  jury,  in  estimating  the  damages, 
are  not  to  take  into  consideration  whether 
the  general  value  of  the  premises  have  been 
enhanced  or  depreciated  by  reason  of  the  act 
of  the  defendant,  but  simply  whether  they  are 
depreciated  as  to  the  plaintiff.    In  such  action, 


on  estimating  the  plaintiff's  damages,  where 
the  alterations  and  changes  made  by  the 
tenant  are  of  such  a  nature  as  to  admit  of  the 
premises  being  restored  to  their  condition  at 
the  time  of  the  demise,  the  jury  may  take 
into  consideration  what  sum  would  be  equiv- 
alent to  the  costs  and  expenses  incident  to  the 
restoration  of  the  demised  premises  to  their 
original  state  at  the  time  of  the  demise.  Un- 
der a  declaration  properly  framed  for  that 
pur]jose,  if  the  premises  arc,  at  the  time  of 
their  surrender,  by  the  act  of  the  defendant, 
rendered  untenantable,  the  jury  may  also  take 
into  consideration  the  value  of  the  rent,  or 
the  use  of  the  premises,  for  such  period  of 
time  as  would  be  requisite  to  put  them  in  a 
tenantable  state. 

IV.  If  the  changes  amount  to  a  total  de- 
struction of  any  part  of  the  demised  property, 
such  as  shade  trees  and  ornamental  shrub- 
beiy,  the  jury  may  also  take  into  considera- 
tion the  actual  value  of  the  property  totally 
destroj'ed,  with  reference  to  their  original  state 
and  condition  at  the  time  of  the  demise,  and 
their  value  to  the  owner  of  the  reversion. 

In  Tennessee,  where  land  is  sold  at  execu- 
tion sale,  and  the  purchaser  takes  possession, 
and  the  land  is  redeemed,  the  owner  is  not 
entitled  to  rent  or  damages  for  waste  before 
the  redemption,  but  he  is  entitled  to  rent  for 
the  time  he  was  wrongfully  kept  out  of  pos- 
session after  redemption.  Kannon  v.  Pillow, 
7  Humphreys,  281. 

"  Though  a  disseisee  may  have  his  action 
of  trespass  qiiare  clansum  /regit  against  the 
disseisor  for  the  injury  done  by  the  disseisin, 
at  which  time  the  plaintiff  was  seised  of  the 
land,  he  cannot  have  it  for  any  act  done  after 
the  disseisin  until  he  gain  possession  by  re- 
entry, and  then  he  may  maintain  it  for  the 
intermediate  damage  done ;  for.  after  his  re- 
entry, the  law,  by  a  kind  of  jus  postliminii, 
supposes  the  freehold  to  have  all  along  con- 
tinued in  him."  3  Black.  Com.  210;  4  Kent's 
Com.  119.  Ex'rs  of  Stcveus  v.  Hollister,  18 
Verm.  294. 


CHAPTER  VI. 

RULE  OF  D.UIAGES  IN  ACTIONS  BROUGHT  FOR  TIIE  BREACH  OF  COVE- 
N.ANTS  OR  AGREEMENTS  GROWING  OUT  OF  THE  CONVEYANCE  OR  OC- 
CUPATION   OF   RE.AL   ESTATE. 

The  Ancient  Warrailty. — Modern  Covenants.  —  The  Stijndaf to  Ihiplex  and 
Edictum  JEdilium  of  the  Roman  Law.  —  Rules  of  the  Modern  Civil  Law, 
in  Cases  of  Eviction.  —  Of  the  French  Code.  —  Measure  of  Damages  accord- 
ing to  the  Common  Law,  in  Cases  of  Eviction.  —  On  the  Covenants  for  Quiet 
Enjoyment,  and  of  Warranty.  —  Improvements.  —  Leases.  —  Rule  in  Differ- 
ent States.  —  Partial  Eviction.  —  Measure  of  Damages  on  the  Covenant  of 
Seisin.  —  On  the  Covenant  against  Licumbrances.  —  On  Covenants  to  convey 
Lands.  —  Landlord  and  Tenant.  —  Covenants  to  repair  and  rebuild. 

I  PROPOSE  to  discuss  in  this  chapter  the  subject  of  agreements 
growing  out  of  the  conveyance  or  occupation  of  real  estate. 
This  will  embrace  Real  Covenants,  or  the  stipulations  entered 
into  by  a  seller,  and  incorporated  into  the  conveyance  ;  Con- 
tracts for  the  Sale  of  Land ;  and  Agreements  entered  into  by 
Landlord  and  Tenant  for  the  Temporary  Use  or  Enjoyment  of 
Real  Estate. 

Re.al  Covenants.  —  And  first,  of  Real  Covenants.  The  war- 
ranty of  the  ancient  English  law  was  in  substance  a  covenant, 
whereby  the  grantor  of  an  estate  of  freehold  and  his  heirs  were 
bound  to  warrant  the  title,  and  either  upon  voucher  or  judgment 
in  a  writ  of  loarrantia  charke,  to  yield  other  lands  to  the  value 
of  those  from  which  there  had  been  an  eviction  by  a  paramount 
title.*  Upon  eviction  of  the  freehold,  no  personal  action  lay  at 
common  law  upon  the  warranty.  The  party  had  only  a  writ  of 
loarraniia  charke  upon  his  warranty  to  recover  a  recompense  in 
value  to  the  extent  of  his  freehold.!  For  reasons  assigned  by 
Blackstone,1:  in  modern  practice  the  covenant  has  totally  super- 
seded the  warranty ;  and  to  this  end  various  statutes  have  con- 
tributed.    Such  is  the  statute  §  making  void  all  warranties  by 

*  Co.  Litt.  365  a,  and  Reeves'  Eng.  Law,  also,  Co.  Litt.  384  a,  for  "  divers  other  diver- 

vol.  i.  p.  44'*.  sities  between  warranties  and  covenants,  which 

t  Kent's  Com.  vol.  iv.  p.  469.  yield  but  damages." 

X  Bl.  Com.  book  ii.  ch.  20,  p.  300  ;  and  see,  §  4  and  5  Anne,  c.  16. 
11 


162  REAL    COVENANTS.  [cil.    VI. 

tenant  for  life,  as  against  any  reversioner  or  remainder-man; 
and  as  against  the  heir,  all  collateral  warranties  hy  any  ancestor 
who  had  no  estate  of  inheritance  in  possession  ;  and  these 
statutes  have  been  generally  reenacted  in  this  country.* 

[152]  Personal  Covenants  in  Deeds.  —  The  usual  personal 
covenants  contained  in  a  deed,  the  rule  of  damages  in 
relation  to  which  we  shall  now  proceed  to  examine,  are,  First, 
that  of  seisin,  or  that  the  grantor  is  lawfully  seised.  Second, 
that  he  has  good  right  to  convey,  which  has  l^een  called  synon- 
ymous with  the  covenant  of  seisin. f  Tkirxl,  that  the  premises 
are  free  from  incumljrances.  Fourth,  for  quiet  enjoyment,  or 
that  the  grantee  shall  quietly  enjoy.  Fifth,  of  warranty,  or  that 
the  grantor  shall  w^arrant  and  defend  the  title  against  all  lawful 
claims  ;  and,  Sixth,  the  covenant  for  further  assurance,$  or  that 
the  grantor  will  execute  any  further  conveyances,  to  perfect  the 
title,  which  the  grantee  can  legally  require.^ 

In  regard  to  all  these  covenants  the  rule  is  general,  that  no 
substantial  relief  will  be  given  till  the  party  complaining  has 
actually  suffered  injury.  It  is  not  sufficient  that  he  is  menaced 
by  an  outstanding  title  or  incumbrance.  The  covenantee  can- 
not have  anything  more  than  nominal  damages  until  he  has 
been  damnified  in  consequence  of  a  breach  of  the  covenant.§  ^ 
But  it  often  becomes  a  question  what  constitutes  a  breach,  and 
what  a  damage,  sufficient  to  found  a  claim  for  remuneration. 

In  regard  to  the  three  first,  if  the  title  is  defective,  or  incum- 
brances exist  at  the  time  of  the  conveyance,  there  is  a  breach  as 

*  It  is  certainly  so,  at  least,  in  New  York,  scended  or  devised.     And  it  has  been  fiarther 

The  statute  of  4   and  5  Anne,  c.  16,  was  re-  declared  (sec.  140),  that  no  covenant  shall  be 

enacted  in  New  York  in  1788 ;  and  finally  the  implied   in   any    conveyance    of    real   estate, 

Revised   Statutes  of  the  same  State  (vol.  i.  whether  such  conveyance  contain  special  cov- 

p.  739,  §  146)   have  abolished  both  lineal  and  euants  or  not. 

collateral  warranties  with  all  their  incidents,         t  Rickert  v.  Snyder,  9  Wendell,  416. 
and  have  made  heirs  and  devisees  answerable        {  Dimmick  v.  Lockwood,  10  Wend.  149. 
iipon  the  covenant  or  agreement  of  the  ances-        §  Nyce's  Ex'rs  v.  Uberts,  17  Ohio,  71. 
tor  or  testator,  to  the  extent  of  the  lands  de- 

1  The  general  rule  already  considered  in  regard  to  breaches  of  contract,  by  which  a  party  is 
liable  for  such  damages  as  were  or  should  have  been  contemplated  by  him  at  the  time  of  the 
contract  as  the  result  of  its  breach  {ante,  66,  67,  96),  does  not  usually  apply  to  the  breaches 
of  covenant  in  a  deed  so  as  to  include  consequential  damages.  The  specific  character  of  each 
covenant  furnishes  the  rule,  and  necessarily  excludes  a  less  definite  one.  Thus  the  Supreme 
Court  of  Indiana  refused  to  apply  the  general  rule  to  the  breach  of  covenants  of  title  in  a  deed. 
Philips  V.  Reichert.  17  Ind.  120.  In  Rhode  Island,  however,  the  rule  referred  to  was  applied 
to  determine  the  extent  of  the  damages  sustained  by  a  breach  of  the  covenant  against  incum- 
brances.    Greene  v.  Creighton,  7  R.  I.  (4  Ames)  1. 

2  Willson  V.  Willson,  5  Fost.  (N.  H.)  229.  In  an  action  brought  upon  a  warranty,  by  an 
assignee,  the  measure  of  damages  is  the  sum  which  the  assignor  might  have  recovered  iiad  the 
action  been  brought  in  his  name.  The  amount  paid  by  the  assignee  for  the  right  of  action,  is 
not  the  rule.  The  warrantor  must  make  good  his  warranty.  Sweet  v.  Bradley,  24  Barb. 
(N.  Y.)  549. 


CII.    YI.] 


CIVIL    LAW. 


163 


soon  as  the  deed  is  executed.  But  those  of  warranty  and  quiet 
enjoyment  are  prospective,  and  an  actual  ouster  or  eviction  is, 
in  general,  necessary  to  constitute  a  breach,*  ^  It  is  of  the  rule 
of  damages  for  eviction,  in  a  suit  brought  to  enforce  these  cove- 
nants, that  we  shall  first  speak. 

It  is  apparent  that  the  real  covenants  are,  to  some  extent, 
cumulative ;  thus  a  covenant  for  quiet  enjoyment  is  broken  by 
an  eviction  under  a  prior  mortgage,  which  would  equally  be  a 
breach  of  that  ai2:ainst  incumbrances.  The  rules  of  damao;es  on 
the  various  covenants  consequently  run  into  each  other;  but  the 
most  intelligible  mode  of  treating  the  subject  will  be,  as  far  as 
possible,  to  consider  them  separately. 

Civil  Law   Analogies.  —  First,  however,  we  will    ex-  [153] 
amine  the  analogies  of  the  civil  law.     The  siipuUdio  duplex 
was  the  remedy  provided  by  the  Roman  law  for  cases  of  evic- 
tion,! and  for  the  breach  of  warranties  that  were  some- 
times required  on  the  sale  of  property  under  the  Edidnm  [154] 
JEdUmmX     And  by  the  siipidalio,  the  rule  of  damages  was 


*  Kent's  Cora.  vol.  iv.  p.  471. 

t  Puthier,  Pundectcs,  par  Breard  Ncuvillc, 
vol.  viii.  p.  97. 

J  The  Edictiun  ^■Edilinm  was  applied  more 
particularly  to  sales  of  chattels  than  to  real 
estate ;  but  it  will  not  be  considered  out  of 
place  here. 

Aiunt  ffidiles,  "  Qui  mancipia  vendunt,  cer- 
tiores  faciant  emptores  quid  morbi  vitiive  cui- 
que  sit ;  quis  fugitivus,  errove  sit ;  noxave 
solutus  non  sit.  Eademque  omnia  cum  ea 
mancipia  venibunt,  palam  ac  rccte  pronun- 
cianto.  Quod  si  niancipium  adversus  ea  venis- 
set,  sive  adversus  ((uod  dictum  promissunive 
fucrit  quura  venirct,  fuisset;  (juod  ejus  (nom- 
ine) priEstari  dportere  dicetur,  emptori,  onmi- 
busquc  ad  quos  ea  res  pertinet,  judicium  dabi- 
mns  ut  id  mancipium  rcdliibeatur.  Si  quid 
autcm  post  venditionem  traditionemque  dete- 
rius  cniptoris  opera,  famili;\;  procuratorisve 
ejus  factum  erit;  sive  quid  ex  eo  j)ost  veiuli- 
tionem  natum,  acquisitum  fucrit,  et  si  quid 
aliud  in  venditione  ei  accesserit,  sive  quid  ex 
ea  re  fructus  pervenerit  ad  emptorem ;  ut  ea 
omnia  restitnat.  Item  si  quas  acccssiones  ipse 
praititerit,  ut  recipiat. 

"  Item  si  quod  mancipium  capitalcm  fraud- 
em  admiscrit,  mortis  conscisccndiu  sihi  causa 
quid  fccerit,  inve  arenam  dcpugnandi  causfi 
ad  bestias  intromissus  fucrit ;  ea  omnia  in 
venditione  pronuncianto  ;  ex  his  enim  causis 
judicium  dabimus.  Hoc  amplins,  si  quis  ad- 
versus ea,  sciens,  dolo  malo  vcndidisse  dicetur, 


judicium  dabimus."  Dig.  lib.  xxi.  tit.  1,  first 
part,  §  1,  Ulp.  ad  Ed.  iEdil. 

Tills  edict  gave  three  species  of  actions : 
(1)  the  actio  mlhlbitoria,  which  was  similar  to 
our  action  founded  on  the  right  to  return  the 
chattel  and  demand  the  price  paid;  (2)  the 
actio  estimatoria,  or  actio  qiianti  minoris,  anal- 
ogous to  our  action  for  the  difference  between 
the  actual  value  and  tlie  value  that  the  article 
would  have  had  if  witliout  blemish,  or  accord- 
ing to  the  warranty  or  rejiresentation  ;  and, 
(3)  the  action  grounded  on  the  vendor's  fraud, 
given  by  the  last  section.  And  the  edict  ap- 
plied to  all  sorts  of  animals  as  well  as  to 
slaves.  Po-thier,  Pandectes,  ed.  de  Breard 
Neuville,  vol.  viii.  pp.  8  and  10.  And  in  cer- 
tain cases  to  real  estate,  p.  55. 

As  to  the  rule  of  damages  in  the  actions 
redliihitoria  et  qnanti  minoris,  various  cases  are 
stated  in  the  Digest. 

Lal)eo  scribit,  "  Si  uno  pretio  plures  servos 
emisti,  et  de  uno  agere  velis,  (inter)  ajstima- 
tionem  servorum  proinde  fieri  debere,  at(jue 
ut  ficret  in  ajstimationem  bonitatis  agrl,  quum 
ob  evictara  partem  fundi  agatur."  Dig.  lib. 
xxi.  tit.  1,  §  72,  Pomp.  lib.  17. 

"  Si  plnra  mancipia  uno  jn-ctio  venicrint,  et 
de  uno  cornm  anlilitia  actiunc  utamiir,  ita 
demum  pro  bonitate  ejus  a^stimatio  fiat,  si 
confuse  nniversis  mancipiis  coustitutum  pre- 
tium  fuerit.  Quod  si  singulornm  mancipio- 
rum  constituto  pretio,  universa  tanti  venierunt, 
quantum  ex  consummatione  singulornm  fiebat. 


1  But  in  actions  on  the  covenant  for  quiet  enjoyment,  on  the  plaintiff's  eviction,  the  right  of 
action  is  immediate  and  complete,  and  the  whole  damages  are  to  be  recovered  in  one  aciion. 
Van  Zandt  v.  The  Mayor,  &c.,  8  Bosw.  (N.  Y.)  375. 


164  REAL    COVENANTS.  [CH.    VI. 

in  most  cases  fixed  at  double  the  price  of  the  article  in  question. 
Quod  ttutem  diximus,  diiplam  promiiti  oportere,  sic  erit  accipiendum,  at 
non  ex  omni  re  id  accipiamus  ;  sed  de  his  rebus  qiice  pretiosores  essent ; 
si  margarita  forte,  aid  ornanienta  pretiosa  vel  vestis  serica,  vel  qidd 
aliud  non  contemptibile  veneat* 

Under  the  system  of  the  civil  law,  as  introduced  into  modern 
Europe,  as  no  distinction  was  made  on  this  subject  between  real 
and  personal  property,  or  mobiles  and  immobiles,  so  the  remuner- 
ation was  the  same  whether  the  claim  was  founded  on  the  non- 
delivery of  the  article,  or  an  eviction  after  possession.!  And  in 
all  these  casfes  the  price  of  the  article  seems  to  have  been  the 
basis  of  the  measure  of  damages  ;  but  as  with  chattels,  so  with 
land,  the  increased  value  of  the  property  was  taken  into  ac- 
count, and  for  this  the  party  evicted  had  a  right  to  claim.  A 
distinction  was,  however,  made,  to  which  we  have  already  had 
occasion  to  advert,  between  the  seller  in  good  faith  and  the 
party  who  knew  he  had  no  title  to  convey.  Thus,  if  by  reason 
of  circumstances,  which  could  not  have  been  foreseen  at  the  time 
of  the  contract,  the  value  should  be  very  greatly  augmented, 
the  seller  in  good  faith  would  be  liable  only  for  the  highest  sum 
to  which  the  parties  might  have  reasonably  supposed  that  the 
value  would  rise  -,%  in  many  cases,  certainly,  a  difficult  inquiry. 
So,  again,  the  seller  in  good  faith  was  only  liable  for  direct 
damages ;  while  more  remote  loss  would  be  charged  upon  the 
seller  in  bad  faith.  Thus,  if  after  the  purchaser  entered  into 
possession  he  should  establish  an  inn  on  the  premises  and  be 
subsequently  evicted,  the  seller  in  good  faith  was  not  charge- 
able for  the  injury  done  to  the  business  of  the  inn.  But  the 
seller  in  bad  foith  would  in  such  a  case  be  held  liable.§  And 
even  the  seller  in  good  faith  would  be  held  .answerable 
[155]  under  similar  circumstances  if,  at  the  time  of  the  bar- 
tune  cnjiisque  mancipii  pretium,  seu  pluris,  simplum  condemnatur  venditor.  Nam  si  neque 
seu  minoris  id  esset,  sequi  debemus."  —  Dig.  pretium,  neque  aecei?sionem  solvat,  neque  eum 
lib.  xxi.  §  36.  qui  eo   nomine   obligatus   erit,  liberet,  dupli 

ISo  interest  was  to  be  paid  to  the  buyer  on  pretii  et  accessionis  condemnari  jubetur ;  si 
the  price  given  ;  and  if  the  shxve  had  made  vero  reddat  pretium  et  accessionem,  vel  eum 
anything  while  in  the  buyer's  possession,  but  qui  eo  nomine  obligatus  est,  liberet,  simpli 
without  his  means  or  assistance,  such  acquisi-  videtur  condemnari.  Dig.  lib.  xxi.  tit.  1, 
tions  were  to  be  returned  with  the  slave  to  the  §  82. 
purchaser.     Poth.  Pan.  vol.  viii.  p.  7.5.  *  Dig.  lib.  xxi.  tit.  2,  first  part,  §  iv. ;  Po- 

And  in  certain  cases  both  the  vendor  and  thier,  Pan.  ed.  Breard  NeuviJle,  vol.  viii.  p.  102. 
purchaser  were  held  to  give  each  other  guar-  t  Pothier,  Contrat  de  Vente,  part  ii.  ch.  1, 
antees,  to  which  the  rule  of  the  stipulatio  duplex    §  1  ;  art.  5,  §  69. 

apjdied.     Poth.  Pan.  vol.  viii.  p.  99.     The  rule         X  Potliicr,  Contrat  de  Vente,  part  ii.  ch.  1, 
of  damages  in   the  actio  redlnhitoria  was  not,     §  2  ;  art.  .5,  §  1.30. 
however,  always  the  double  value.  §  Pothier,  Vente,  part  ii.  ch.   1,  §  1 ;  art. 

Kedhiliitoria  actio  dupliccm  habet  condem-     5,  §  136. 
nationem  modo  enim   in   duplum,   modo    in 


CH.    VI.]  FRENCH    CODE.  165 

gain,  the  property  was   intended   to   be   used  as   an  inn.     In 
all  these  cases  much  was  left  to  the  discretion  of  the  iudue.* 

It  was  held  by  the  masters  of  the  civil  law,  that  the  fortui- 
tous depreciation  of  the  property  did  not  alter  the  rule ;  as  if, 
after  the  contract,  buildings  were  to  burn  down,  and  eviction 
subsequently  take  place,  the  measure  of  damages  would  still  be 
the  price  paid ;  and  so  it  would  probably  be  held  with  us.f 

French  Code.  —  In  the  French  Code  the  subject  of  evictions 
is  treated  with  the  usual  brevity,  order,  and  precision  of  that 
great  work.  The  clauses  which  relate  to  the  subject  are  as  fol- 
lows :  — 

Where  a  warranty  has  been  given,  or  where  no  stipulation  has  been  made  on 
this  subject,  in  such  case,  if  the  purchaser  is  evicted  he  is  entitled  to  demand 
from  the  seller, — 

I.  The  restitution  of  the  purchase  money. 

II.  The  restitution  of  any  mesne  profits  which  he  maybe  obliged  to  pay  over 
to  the  proprietor  who  evicts  him. 

III.  The  expenses  incurred  on  tlie  demand  under  the  warranty  of  the  buyer, 
and  those  incurred  by  the  person  originally  making  the  demand. 

IV.  The  damages  and  interest  as  well  as  the  expenses  and  legal  costs  of  the 
contract. 

If,  at  the  time  of  the  eviction,  the  thing  sold  proves  to  be  lessened  in  value  or 
considerably  injured,  whether  by  the  negligence  of  the  buyer  or  owing  to  acci- 
dents resulting  from  superior  force,  the  seller  is  in  either  case  liable  for  the  en- 
tire purchase  money. 

But  if  the  diminution  in  the  value  of  the  article  has  produced  any  profit  to  the 
buyer,  the  seller  has  a  right  to  deduct  from  the  purchase  money  a  sum  equal  to 
this  profit. 

In  case  the  thing  sold  is  increased  in  value  at  the  time  of  the  eviction,  and 
even  if  such  increase  be  independent  of  any  acts  of  the  purchaser,  yet  he  is  en- 
titled to  receive  from  the  seller  its  actual  value  over  and  above  the  purchase 
money. 

The  seller  is  bound  to  reimburse  the  purchaser,  or  to  cause  him  to  be  reim- 
bursed by  the  party  evicting  him,  for  all  actual  improvements  and  beneficial  re- 
pairs that  he  shall  have  made  to  the  property. 

If  the  seller  has  sold  the  lands  of  a  third  person  in  bad  faith,  he  will 
be  compelled  to  reimburse  the  purchaser  for  all  sums  which  he  may  have   [ISoJ 
expended  upon  them,  although  such  expenses  be  merely  pleasurable  or 
fanciful. J 

*  Observez,  says  Pothier,  §  138,  que  par  la  in  bad  faith  and  bona  fide,  will  be  found  clearly 

liquidation  et  estimation  de  ces  dommages,  on  illustrated    in    Lord    Kaimes'    Equity,    270  ; 

doit  user  de  beaucoup  plus  de  mode'ration  k  Erskine's  Inst.  125  ;    and   see  also,  Green  v, 

I'e'gard  d'un  vendeur  de  bonne  foi  qu'a  I'egard  Biddle,  8  Wheaton,  1. 

d'un  vendeur  de  mauvaise  foi.  t  Pothier,  Vente,  art.  69. 

This  distinction  between  the  vendor  acting  J  1630.    Lorsque  la  garantic  a  ete  promise, 


166  EEAL    COVENANTS.  [cil.    VL 

Co\t:nants  in  Conveyances.  English  Cases.  —  Very  little 
learning  is  to  be  found  in  the  English  books  on  the  subject  of 
the  measure  of  compensation  for  the  covenants  contained  in 
conveyances,*  and  it  will  be  more  convenient,  at  once  to  group 
together  those  authorities  before  we  proceed  to  that  fuller  dis- 
cussion of  the  matter  which  will  result  from  the  examination  of 
the  American  decisions. 

It  was  early  held,  in  a  case  in  which  the  eviction  was  by  lease 
for  years,  that  an  action  of  covenant  to  recover  damages  could 
be  founded  on  a  clause  of  warranty  real  annexed  to  a  freehold, 
and  it  was  so  agreed  by  all  the  judges  in  the  Exchequer 
Chamber. 

"  Because  that  tliough  the  wari-anty  was  annexed  to  a  freehold,  yet  the  breach 
and  impeaching  was  not  of  a  freehold,  but  of  a  chattel ;  that  is  to  say,  of  a  lease 
for  years,  for  which  there  could  be  neither  a  voucher,  rebutter,  nor  warraniia 
chartcB.  So,  that  though  there  had  been  a  judgment  in  the  warraniia  chartce  in 
the  case,  yet  neither  upon  entry  nor  upon  recovery  in  eject' — firmce  upon  this 
lease,  there  would  be  neither  a  voucher  nor  rebutter,  nor  value  upon  the  war- 
raniia charice,  and  therefore  a  real  warranty  is  a  covenant  real  when  the  freehold 
is  brought  in  question.     But  where  a  lease  is  in  question,  or  any  other  loss  that 

doth  not  draw  away  the  freehold,  it  may  be  used  as  a  personal  covenant, 
|_lo7j   whereupon  damages  may  be  recovered,  so  it  is  both  a  real  and  personal 

covenant  to  several  ends  and  respects."  f 

Another  case  well  illustrates  that  want  of  any  precise  meas- 
ure of  damages  which  characterizes  almost  all  the  early  English 
decisions. 

"  B.  covenants  that  he  was  seised  of  Bl'  acre  in  fee  simple,  when  in  truth  it 
was  copyhold  laud  in  fee  according  to  the  custom.     By  the  court:  The  covenant 

ou  qix'il  n'a  rien  ete  stipule  a  ce  siijet,  si  I'ac-  1633.     Si  la  chose  vendue  se  troiive  avoir 

quereur  est  evince',  il  a  droit  de  demander  augmcnte  de  prix  a  I'epoque  de  I'eviction  in- 

contre  le  vendeur, —  de'pendamment  meme  du  fait  de  I'acquci-eur, 

I.  La  restitution  du  prix.  le  vendeur  est  tenu  de  lui  payer  ce  qu'elle  vaut 

II.  Celle  des  fruits,  lorsqu'il  est  oblig^  de     au-dessus  du  prix  de  la  vente. 

les  rendi'c  au  proprie'taire  qui  I'cM-ince.  1634.     Le  vendeur  est  tenu  de  rembourser 

III.  Les  frais  faits  sur  la  dcmande  en  gar-  ou  de  faii-e  rembourser  a  I'acquereur  par  celui 
antie  de  I'acheteur,  et  ceux  faits  par  le  de-  qui  I'evince,  toutes  les  reparations  et  ameliora- 
mandeur  originaire.  tions  utiles  qu'il  aura  foites  au  fonds. 

IV.  Entin  les  dommages  et  intc'rets,  ainsi  1635.  Si  le  vendeur  avait  vendu  de  mau- 
que  les  frais  et  loyaux  couts  du  contrat.  vaise  foi  le  fonds  d'autrui,  il  sera  oblige'  de 

1631.  Lorsqu'a  I'epoqne  de  I'eviction,  la  rembourser  a  I'acqiie'reur  toutes  les  de'penses, 
chose  vendue  se  trouve  diminuee  de  valeur,  ou  memes  voluptuaires  o\\  d'agrement,  que  celui- 
conside'rablement  deterioree,  soit  par  la  negli-     ci  aura  faites  au  fonds. 

gence  de  I'acheteur,  soit  par  des  accidens  deforce  *  "  The  cases  on  this  point  in  England  are 

majeure,  le  vendeur  n'en  est  pas  moins  tenu  very  scanty."     Mayne  on  Damages,  95. 

de  restituer  la  totalite'  du  prix.  t  Pincombe    ii.    Rudge,    Hob.    3.      See    a 

1632.  Mais  si  I'acquereur  a  tire  profit  des  learned  note  to  this  case  by  Mr.  Williams,  in 
degradations  par  lui  fiiites,  le  vendeur  a  droit  his  edition  of  these  Reports. 

de  retenir  sur  le  prix  une  somme  egale  a,  ce 
profit. 


CH.    VL]  AMERICAN   DECISIONS.  167 

is  broken  ;  and  tlie  jury  shall  give  damages  in  their  consciences  according  to 
that  rate  that  the  county  values  fee  simple  land  more  than  cojoyhold  land."  * 

In  an  action  of  covenant,!  it  appeared  that  one  Grylls  had 
made  a  lease  of  the  moiety  of  certain  tithes  of  corn  and  grain 
to  the  plaintiff'  for  years,  with  covenant  of  title.  The  plaintiff" 
was  ejected  by  title  paramount,  and  brought  suit.  On  the  trial 
it  was  contended  for  the  plaintiff",  that  the  true  mode  of  esti- 
matino;  his  damages  was  to  ascertain  the  value  of  the  interest 
in  the  term,  and  to  add  to  the  amount  thereof  the  cost  of  de- 
fending the  ejectment.  But  it  was  insisted  by  the  defendants 
that  the  plaintiff"  was  only  entitled  to  recover  the  fine  paid  on 
the  making  of  the  lease,  the  interest  thereon  to  the  time  of 
judgment,  and  the  costs  of  defending  the  ejectment ;  and,  with- 
out deciding  the  point,  the  King's  Bench  intimated  such  to  be 
their  opinion.^ 

Again,  where  the  defendant  had  conveyed  to  the  plaintiff" 
with  covenant  of  title,  and  the  plaintiff"  had  been  sued  by  a 
party  having  title  paramount,  and  had  paid  a  sum  of  money  to 
compromise  the  claim,  it  was  held  that  in  an  action  on  the  cov- 
enant he  should  recover  the  whole  amount  paid  by  way  of  com- 
promise, together  with  the  costs  of  the  ejectment  suit,  and  that 
although  no  notice  of  the  suit  had  been  given  to  the  de- 
fendant.J  ^ 

Covenants  for  Quiet  Enjoyment  and  of  Warranty.  Rule  in 
American  States.  —  In  this  country,  the  rule  of  damages  in  re- 
gard to  eviction  is  generally  presented  under  the  covenant  for 
quiet  enjoyment  or  of  warranty ;  and,  in  these  cases,  it  is  well 
established  that  the  mere  existence  of  a  paramount  legal 
title  is  not  sufficient,  but  that  the  plaintiff"  must  allege  [158] 
and  prove  an  ouster  or  eviction  by  a  paramount  title. § 

It  need  not  be,  however,  by  process  of  law ;  the  grantee  may 
surrender  possession,  but  in  such  case,  he  assumes  the  whole  bur- 

*  Gray  v.  Briscoe,  Noy's  Rep.  142.  §  See  Kent's  Com.  vol.  iv.  p.  460,  fifth  edition  ; 

t  Pomeryy.  Partington,  Ex'r  of  M.  Grylls,  2  Saunders,  181  b.  u.  10;  Poster  v.  Piersou, 
3T.  R.  665.  4  T.  R.  617,  621. 

i  Smith  V.   Compton's  Ex'r,  3  Barnwall  & 
Adolphus,  407. 

1  This  intimation  was  disapproved  by  the  English  Court  of  Common  Pleas  (per  Mr.  J. 
Blackburn),  in  the  late  case  of  Locke  v.  Furze,  1  L.  R.  (C.  P.)  441. 

2  In  liunny  v.  Hopkinson,  1  L.  T.  R.  (N.  S.)  53,  in  an  action  for  breach  of  a  covenant  for 
quiet  enjoyment,  the  master  of  the  rolls  allowed  the  full  amount  of  the  vendee's  expenditures 
in  converting  the  land  to  the  purpose  for  which  it  was  bought,  by  erecting  buildings  on  it.  It 
does  not  appear  from  the  report  that  the  purpose  was  known  to  the  vendee,  except  as  might  be 
inferred  from  the  lots  being  building  land.  The  value  of  the  improvements  and  the  actual  ex- 
pense of  making  them,  seem  to  have  been  considered  as  identical. 


168  REAL   COVENANTS.  [CH.    VI. 

den  of  proving  that  the  title  to  which  he  surrenders  without 
contest,  is  actually  paramount  to  that  derived  from  his  grantor.*  ^ 
That  there  must,  however,  be  an  actual  loss  of  the  land  to  sup- 
port the  plaintiff's  claim,  is  clear ;  f  otherwise  he  is  entitled  to 
recover  nominal  damages  only4  ^ 

North  Carolina.  —  In  North  Carolina,  where  it  appeared  that 
at  the  time  of  execution  of  the  deed  to  the  plaintiff,  and  pre- 
vious thereto,  a  third  person  was  in  possession  of  the  premises 
under  a  paramount  title,  it  was  held  that  this  was  sufficient  to 
constitute  a  breach  of  the  covenant  for  quiet  enjoyment ;  §  and 
in  another  case,II  the  Supreme  Court  of  the  United  States  said, 
"If  the  grantee  be  unable  to  obtain  possession  in  consequence 
of  an  existing  possession  or  seisin  by  a  person  claiming  and 
holding  under  an  elder  title,  this  would  certainly  be  equiv- 
[159]  alent  to  an  eviction  and  a  breack^y 

New  York. —  In  New  York,  it  has  been  held  **  that  where  the 
premises  conveyed  with  covenant  of  warranty,  had  been  subse- 
quently transferred  to  another  purchaser,  the  first  grantee 
might  proceed  directly  on  the  covenant  against  his  grantor. 

The  question  as  to  the  measure  of  compensation,  came  up  at 
an  early  day  in  the  State  of  New  York.ff  The  defendant's  tes- 
tator. Ten  Eyck,  had  conveyed  certain  lots  in  Albany  to  one 
Walsh,  for  £300.  Walsh  had  conveyed  to  Staats  —  Staats  to 
Chinn,  who  had  been  evicted,  and  had  recovered  against  the 

*  St.  John  et  al.  v.  Palmer,  5  Hill,  599.  And  McCarty,  3  J.  R.  471  ;  Kortz  v.  Carpenter,  5 

the  rule  is  the  same  in  Massachusetts.     Ham-  J.    R.    120  ;    Kerr  v.   Shaw,    1.3   J.    R.   236  ; 

ilton  V.  Cutts,  4  Mass.  349;  Sprague  w. Baker,  Webb  v.  Alexander,  7  Wend.  281  ;  St.  John 

17  Mass.  586.  v.  Palmer,  5  Hill,  599.     The  language  in  that 

t  Marston  v.  Hohbs,  2  Mass.  R.  433.     In  State  has  uniformly  been,  that  the  covenant 

this  case,  Parsons,  C.  J.,  defines  the  effect  of  of  quiet  enjoyment  goes  to  the  possession  and 

the  various   covenants  with   great   clearness,  not  to  the  title,  and  that  a  disturbance  of  the 

See,  also,   Twambly  v.  Henley,  4  Mass.  441  ;  possession  is  indispensable.     In   the  case  last 

Bearce  v.  Jackson,  4.  Mass.  408  ;  Chapel  v.  cited,  Bronson,  J.,   said,  "  If  the  covenantee 

Bull,  17  Mass.  213.  nerer  had  the  possession,  or  if  he  had  the  posscs- 

t  Waldron  v.  McCarty,  3  Johns.  R.  471  ;  ^  sion  and  retains  it  still,  it  is  impossible  that 

St.  John   V.   Palmei',  5   Hill,  599,  and  cases  there  should  have  been  an  eviction,  and  no 

there  cited.  action  will  lie,  however  hard  the  case  may 

§  Grist  V.  Hodges,  3  Dev.  198.  seem    to   be.     The  grantor  should  have  pro- 

II  Duval  V.  Craig,  2  Wheaton,  45,  61.  tected  himself  by  other  covenants." 

IT  It  is  very  correctly  stated    by  the  learned  **  Withy  v.  Mumford,  5  Cowen,  137. 

reporter,  in  a  note  to  the  case  of  St.  John  v.  ft  Staats  v.  Ten  Eyck's  Ex'rs,  3  Caines,  111 

Palmer,  5  Hill,  599,   that  these  cases  are  op-  (1805). 
posed   to   the  New  York  rule.     Waldron   v. 

1  Brandt  v.  Foster,  5  Iowa,  287.  But  the  adverse  title  must  have  been  hostilely  asserted. 
Ibid. 

^  In  an  action  upon  a  covenant  of  warranty  and  quiet  enjo3Tnent,  where  the  right  of  a  prior 
mortgagee  in  possession  existed  at  the  time  of  the  conveyance  of  the  premises  to  the  plaintiff, 
and  the  mortgagee  could  and  did  by  virtue  of  that  right  resist  the  grantee's  claim  to  the  posses- 
sion, it  was  held  by  the  Supreme  Court  of  New  York,  at  Special  Term,  that  the  covenant  of 
warranty  was  broken,  and  that  the  measure  of  the  grantee's  damages  was  the  amount  due  on 
the  mortgage  with  interest.     Winslow  v.  McCall,  32  Barb.  N.  Y.  241. 

2  See  this  case  disapproved  in  Brown  v.  Dickerson,  12  Penn.  St.  372. 


CH.  vl]  damages  on  eviction.  169 

plaintiff  Staats.  The  covenants  in  Ten  Eyck's  deed  were  of 
seisin  and  for  quiet  enjoyment ;  and  the  two  points  were,  first 
whether  the  plaintiff  was  entitled  to  recover  the  value  at  the 
time  of  eviction,  or  only  at  that  of  the  pmxhase,  and  to  be 
ascertained  by  the  consideration  given ;  and,  secondly,  if  the 
latter,  whether  the  plaintiff  was  entitled  to  interest  on  the  pur- 
chase money  and  the  costs  of  the  eviction.  Kent,  C.  J.,  in  the 
course  of  a  very  able  opinion  said,  that  the  rule  at  common  law 
on  a  warranty  on  a  writ  of  warraniia  chartce,  was  that  the 
demandant  recovered  in  compensation  only  for  the  land  at  the 
time  of  the  warranty  made,  and  that  he  did  not  find  that  the 
law  had  been  altered  since  the  introduction  of  personal  cove- 
nants. 

"  Upon  the  sale  of  lands,  the  purchaser  usually  examines  the  title  for  himself, 
and  in  case  of  good  faith  between  the  parties  (and  of  such  cases  only  I  now 
speak),  the  seller  discloses  his  proofs  and  knowledge  of  the  title. 

"  The  want  of  title  is,  therefore,  usually  a  case  of  mutual  error ;  and  it  would 
be  ruinous  and  oppressive  to  make  the  seller  respond  for  any  accidental  or  ex- 
traordinary rise  in  the  value  of  the  land.  Still  more  burdensome  would  the  rule 
seem  to  be,  if  that  rise  was  owing  to  the  taste,  fortune,  or  luxury  of  the  purchaser. 
No  man  could  venture  to  sell  an  acre  of  ground  to  a  wealthy  purchaser,  without 
the  hazard  of  absolute  ruin." 

Mr.  Justice  Livingston  said,  — 

"  To  find  a  proper  rule  of  damages  in  a  case  like  this,  is  a  work  of  some  diffi- 
culty ;  no  one  will  be  entirely  free  from  objection,  or  not  at  times  work  injustice. 
To  refund  the  consideration,  even  with  interest,  may  be  a  very  inadequate  com- 
pensation, when  the  property  is  greatly  enhanced  in  value,  and  when  the  same 
money  might  have  been  laid  out  to  equal  advantage  elsewhere.  Yet  to 
make  this  increased  value  the  criterion  where  there  has  been  no  fraud,  TIGOI 
may  also  be  attended  with  injustice,  if  not  ruin. 

"  A  piece  of  land  is  bought  solely  for  the  purposes  of  agriculture ;  by  some 
unforeseen  turn  of  fortune  it  becomes  the  site  of  a  populous  city,  after  which  au 
eviction  takes  place.  Every  one  must  perceive  the  injustice  of  calling  on  a  bond 
jide  vendor  to  refund  its  present  value,  and  that  few  fortunes  could  bear  the  de- 
mand. Who,  for  the  sake  of  one  hundred  pounds,  would  assume  the  hazard  of 
repaying  as  many  thousands,  to  which  value  the  property  might  rise,  by  causes 
not  foreseen  by  either  party,  and  which  increase  in  worth  would  confer  no  right 
on  the  grantor  to  demand  a  further  sum  of  the  grantee  ? 

"  To  prevent  an  immoderate  assessment  of  damages,  when  no  fraud  had  been 
practiced,  Justinian  directed  that  the  thing  which  was  the  object  of  the  contract, 
should  never  be  valued  at  more  than  double  its  cost.  Rather  than  adhere  to  the 
rule  of  Justinian,  or  leave  the  matter  to  the  opinion  of  a  jury  as  to  what  may 


170  REAL    COVENANTS.  [oil.    VI. 

or  may  not  be  excessive,  some  more  certain  standard  should  be  fixed  on.  How- 
ever inadequate  a  return  of  the  purchase  money  must  be  in  many  cases,  it  is  the 
safest  measure  tliat  can  be  followed  as  a  general  rule.  This  is  all  that  one  party 
has  received,  and  all  the  actual  injury  occasioned  to  the  other.  I  speak  now  of  a 
case,  and  such  is  the  present,  where  the  grantee  has  not  improved  the  property 
by  buildings  or  otherwise,  but  where  the  land  has  risen  in  value  from  extrinsic 
causes.  What  may  be  a  proper  course  when  dwelling-houses  or  other  buildings 
and  improvements  have  been  erected,  we  are  not  now  determining.  Without  say- 
ing, then,  what  ought  to  be  the  rule,  when  the  estate  has  been  improved  after 
purchase,  my  opinion  is,  that  where  there  has  been  no  fraud  —  and  none  is 
alleged  here  —  the  party  evicted  can  recover  only  the  sum  paid,  with  interest 
from  the  time  of  payment,  when,  as  is  also  the  case  here,  the  purchaser  derived 
no  benefit  from  the  property,  owing  to  a  defective  title.*  The  plaintiff  must  also 
be  reimbursed  the  costs  sustained  in  the  action  of  ejectment."  * 

In  a  subsequent  case,t  where  land  had  been  conveyed  with 
covenants  of  seisin  and  quiet  enjoyment,  and  both  broken, 
[161]  the  questions  were  raised  whether  the  plaintiff  was  en- 
titled to  recover  damages  for  the  improvements  made  by 
him,  and  for  the  increased  value  of  the  land  itself^  As  to  the 
latter  point,  all  the  court  appear  to  have  concurred  with  the 
case  last  cited ;  but  as  to  the  question  of  improvements,  there 
was  a  disagreement.  Spencer,  J.,  was  disposed  to  allow  for  bene- 
ficial improvements. 

He  said,  "  Extravagant  cases  have  been  put  hypothetically  to  show  the  enor- 
mous injustice  of  the  rule  that  the  vendor  must  be  answerable  for  improvements. 
It  has  been  asked  if  a  piece  of  land,  thus  sold  with  covenants,  should  become  the 
site  of  a  flourishing  city,  what  fortune  could,  under  a  rule  allowing  for  improve- 
ments, withstand  ruin  ?  It  may  be  retorted  to  such  a  question,  what  is  to  become 
of  the  industrious  citizen  or  mechanic  who  has  spent  his  hard  earnings  in  erecting 
his  little  house  or  workshop,  relying  on  the  covenant  in  his  deed,  if  he  can  only 
get  back  his  purchase  money  and  interest?  I  lay  it  down  as  a  rule,  which  cannot 
require  much  illustration  to  enforce  it  on  the  score  of  analogy  and  justice,  that, 
in  actions  for  a  breach  of  covenant,  the  damages  are  to  be  estimated  according  to 

*  The  language  of  one  of  the  books,  as  to  fait  issi  qe  nous   puissions   faire  a  la  value 

the   rule  on   warranties,  may   be  worthy   of  solom  ceo  que  ele  passa  hors  tie  nostre  seisine. 

notice.     Hil.  Sexto.  Ed.  II.  187  : —  ....  Et  nota  qe  Bcr'  dit  (lue  si  le  vie  fist 

En   un  breve  de  dower  le   tennant  vouch  estendre  la  tcrre  plus  haut,  (jc  ele  ne  volust  en 

agar'  et  le  gar  fist  defaute  le  grande   cape  temps  de  alienation  quant  breve  de  seisine  luy 

retorne  ove  la  extent,  ....  qe  la  terre  est  voudra  qe  le  tennant  poet  avoir  bou  remidie 

extend  trop  haut  qe  chescun  acr'  de  terre  est  sur  luy  apres  ceo  p.  breve, 

extendu  a  xv.  a.  ou  ele  ne  voleit  al'  lieure  q'e  Et  sic  nota  la  terre  le  tennant  q'est  gar 

ele  passa  hors  de  nostre  seisine  qe  vii.  et  qe  doit  estre  estendu  solon  ceo  qe  ele  valust  en 

ele  est  bien  compole  marie  et  ovesque  ceo  bien  temps  de  alienation  at  non  pas  en  temps  de 

edifie'  et  ne  tut  pas  en  le  temps  de  alienation  recovery. 

p.  qi  nous  prioins  aver  extente  autr  :  qe  n'est  t  Pitcher  v.  Livingston,  4  J.  R.  1. 

1  In  Willson  v.  Willson,  5  Fost.  (N.  H.)  229,  it  was  held  that  the  plaintiff  was  not  en  tied 
to  recover  for  cither. 


en.    YI.]  DAMAGES    ON   EVICTION.  171 

the  value  of  the  thing  when  the  covenant  was  broken.  Thus,  in  a  covenant  for 
the  delivery  of  specific  property  at  a  given  day,  in  case  of  a  failure,  the  rule  in- 
variably is  to  allow  in  damaoes  the  value  of  the  thing  on  the  day  it  ought  to  have 
been  delivered,  and  when  the  covenant  was  broken.  It  follows,  from  the  view  I 
have  taken  of  this  question,  that  the  plaintiff  under  the  covenant  for  quiet  enjoy- 
ment, may  recover  the  improvements,  and  that  under  the  covenant  of  seisin,  he 
could  not,  unless  the  grantee  was  seised  by  virtue  of  the  deed,  and  has  been 
evicted  under  a  title  paramount.  It  has,  however,  been  urged  that  the  introduc- 
tion of  tlie  covenants  of  seisin  and  for  quiet  enjoyment,  were  substituted  for  the 
covenant  of  warranty,  and  that  the  same  rule  ought  to  follow  the  substituted 
covenants.  It  appears  to  me  much  more  proper  to  consider  the  introduction  of 
personal  covenants  in  the  alienation  of  real  property,  as  immediately  assimilating 
themselves  to  other  personal  covenants  and  contracts,  and  as  subject  to  the  same 
rules  of  construction,  and  the  same  rule  of  damages  whenever  they  are  broken. 
If  so,  the  covenant  for  quiet  enjoyment  was  not  broken  until  the  eviction,  and 
the  rule  of  damages  would  be  the  property  lost  at  that  time,  which  would  in- 
clude the  price  paid  for  the  land,  and  the  value  of  those  erections  and  improve- 
ments which  had  been  added  at  the  plaintiff's  expense.  It  is  supposed  that 
though  the  covenants  of  seisin  and  for  quiet  enjoyment  are  distinct,  and  regard 
different  objects,  yet  that  where  the  first  fails  the  latter  is  merged  in  it.  This 
principle  strikes  me  as  illogical  and  unfounded  in  authority. 

"  There  are  authorities  which  show  that,  where  in  a  deed  a  man  covenants  that 
he  hatli  a  good  right  to  convey,  etc.,  and  that  the  party  shall  quietly  enjoy,  one 
covenant  goes  to  the  title,  and  the  other  to  the  possession  ;  and  why  a  person 
who  has  broken  two  distinct  agreements  should  protect  himself  from  a 
responsibility  on  both,  and  be  liable  only  on  the  least  extensive  one,  sur-  [162J 
passes  my  powers  of  comprehension." 

The  other  members  of  the  court  were,  however,  of  a  differ- 
ent opinion.     Van  Ness,  J.,  said,  — 

"  This  court  has  already  determined  that  the  plaintiff  is  not  entitled  to  recover 
any  damages  on  account  of  any  increased  value  of  the  land.  Here  a  distinction 
is  attempted  to  be  made  between  an  appreciation  of  the  land  itself,  and  that  ap- 
preciation of  it  which  is  produced  by  the  erection  of  buildings,  or  the  labor  be- 
stowed upon  it  in  clearing  and  cultivating ;  a  very  nice,  and,  as  I  apprehend,  a 
speculative  distinction,  to  which  it  would  be  difficult,  if  not  in  most  cases  impos- 
sible, to  give  any  practical  effect  without  danger  of  the  most  flagrant  injustice. 

"  It  is  conceded  that  upon  the  covenant  of  seisin  only,  the  recovery  is  to  be 
confined  to  the  consideration  and  interest.  On  the  covenant  for  quiet  enjoyment, 
therefore,  the  plaintiff  must  rely  to  recover  compensation  for  his  improvements. 
Let  us,  then,  examine  whether,  consistently  with  certain  fixed  legal  principles, 
the  covenantee  can  recover  a  greater  sum  of  damages  in  any  case  under  the 
covenant  for  quiet  enjoyment  than  under  the  covenant  of  seisin  ? 

"  An  eviction  must  be  shown  before  a  suit  can  be  maintained  on  the  former 
covenant.     Not  so,  however,  as  to  the  latter ;  for  that  is  broken,  if  the  grantor 


172  REAL    COVENANTS.  [CH.    VI. 

has  no  title,  tlie  moment  the  deed  is  delivered ;  and  the  grantee  has  an  immedi- 
ate right  of  action.  Whenever  the  eviction  is  occasioned  by  a  total  want  of  title 
in  the  grantor,  then  both  the  covenants  of  seisin  and  for  quiet  enjoyment  are 
equally  broken  ;  and  the  grantee  has  his  remedy  on  both.  If  he  proceeds  upon 
the  first,  he  shall  recover  the  consideration  expressed  in  the  deed,  and  the  inter- 
est. But  if  he  proceeds  upon  the  last,  it  is  said  he  shall  recover  according  to 
the  value  at  the  time  of  eviction,  and  as  I  have  before  remarked,  he  must  be 
content  to  recover  according  to  the  then  value,  even  though  it  amounts  to  one 
half  only  of  the  consideration  expressed  in  the  deed. 

"  The  case  would  then  stand  thus :  When  the  deed  contained  both  these  cove- 
nants, if  the  property  at  the  time  of  eviction  be  worth  one  half  of  the  consider- 
ation and  interest,  the  grantee  may,  notwithstanding,  upon  the  covenant  of  seisin 
recover  the  whole  consideration  and  interest.  But  if  the  property  happen  to  be 
worth  double  the  consideration  money  and  interest,  by  reason  of  the  improve- 
ments made  thereon,  he  may  waive  the  covenant  of  seisin,  and  resort  to  the 
covenant  for  quiet  enjoyment,  and  thus  recover  the  whole  amount.  Can  this  be 
possible  ?  It  appears  to  me,  to  give  such  an  effect  to  these  covenants  is  not  rec- 
oncilable with  any  principle  of  law  or  justice. 

"  My  understanding  of  the  nature  of  these  covenants,  when  both  are  contained 
in  the  same  deed,  is  this  :  that  the  covenant  of  seisin  which  relates  to  the  title, 
is  the  principal  and  superior  covenant ;  to  which  the  covenant  for  quiet  enjoy- 
ment, which  goes  to  the  possession,  is  inferior  and  subordinate.  And  I  am  not 
aware  that  a  case  can  possibly  occur  where  the  grantee  can  recover  a 
ri631  greater  amount  in  damages  for  the  breach  of  the  latter  than  of  the 
former  ;  though  there  are  many  cases  where  he  may  recover  less.  The 
suit  here  is  brought  upon  both  covenants  ;  and  both,  in  consequence  of  the  total 
failure  of  the  defendant's  title  and  the  eviction,  have  been  broken.  The  plaintiff, 
accordingly,  has  a  right  to  recover  on  both  ;  but  as  the  amount  of  the  recovery 
would,  according  to  my  ideas,  be  the  same  on  each,  he  must  elect  on  which  of 
them  he  means  to  rely,  and  take  nominal  damages  on  the  other.  The  plaintiff 
is  entitled  to  but  one  satisfaction,  and  he  has  his  remedy  on  either  of  the  cove- 
nants at  his  election  to  obtain  it.  It  will  hardly  be  said  that  he  can  have  judg- 
ment for  the  same  sum  on  both  the  covenants. 

"  But  I  consider  the  question  arising  in  this  cause  as  settled  by  authority,  and 
that,  according  to  established  rules  of  law,  the  plaintiff  is  not  entitled  to  any- 
thing more  than  the  value  of  the  land  as  settled  by  the  consideration  in  the 
deed. 

"  In  suits  upon  the  ancient  covenant  of  warranty,  beyond  all  dispute  the  re- 
covery was  restricted  to  the  value  of  the  land  at  the  time  of  making  the  cove- 
nant. 

"  A  personal  action  will  not  lie  on  the  covenant  of  warranty  upon  eviction  of 
the  freehold  (Bac.  Abr.  tit.  Gov.  C.)  ;  and  for  which  reason,  upon  the  introduc- 
tion of  alienations  by  bargain  and  sale,  new  covenants  were  devised,  but  solely 
for  the  purpose  of  securing  to  the  bargainee  the  personal  responsibility  of  the 
bargainor  in  case  of  a  failure  of  his  title.     I   think  I  am  warranted  in  saying 


CII.    VI.]  DAMAGES    ON    EVICTION.  173 

that  it  never  was  designed,  by  the  insertion  of  these  covenants,  to  esfablish  any 
other  rule  of  damages  than  what  previously  existed,  because  there  is  nothin"  in 
the  terms  of  the  covenants  from  which  an  intention  to  extend  the  liability  of 
the  covenantor  can  be  inferred  ;  but  the  contrary  is  to  be  presumed,  as  not  a 
single  case  is  to  be  found  where  such  a  construction  of  these  covenants,  which 
were  in  a  great  measure  substituted  for  the  covenant  of  warranty,  has  ever  ob- 
tained. 

"  If,  then,  on  the  covenant  of  warranty,  the  satisfaction  recovered  in  land  was 
to  be  equivalent  to  the  value  of  the  lands  granted,  as  it  existed  at  the  time  when 
the  covenant  was  made,  I  do  conceive  that  we  are  bound  to  adopt  a  correspond- 
ent rule,  when  satisfaction  is  sought  to  be  recovered  in  money  in  a  personal 
action,  ou  the  covenant  for  quiet  enjoyment. 

"  Such  a  rule,  moreover,  I  consider  to  be  conformable  to  the  intention  of  the 
parties.  I  question  if  one  grantor  out  of  ten  thousand,  enters  into  these  cove- 
nants with  the  remotest  belief,  that  he  is  exposing  himself  and  his  posterity  to 
the  ruinous  consequences  which  would  result  from  the  doctrine  contended  for  by 
the  counsel  for  the  plaintiff.  By  giving  this  doctrine  our  sanction,  we  should,  in 
my  apprehension,  create  a  most  unexpected  and  oppi'essive  responsibility  never 
contemplated  by  the  parties,  and  inflict  an  equally  unmei'ited  punishment  upon 
grantors  acting  with  good  faith,  and  having  a  perfect  confidence  in  the  validity  of 
their  title  to  the  land,  which  they  have  transferred  for  what  it  is  reasonably 
worth." 

I  have  cited  these  cases  at  length,  because  they  are  [164] 
leading  authorities  on  a  very  iniportant  branch  of  our 
subject.  While  we  acquiesce  in  tlie  doctrine,  as  far  as  regards 
increase  of  value  resulting  from  accidental  circumstances,  we 
may  be  permitted  to  doubt  as  to  the  question  of  beneficial  im- 
provements. 

The  cases  seem  to  have  been  mainly  decided  upon  the  anal- 
ogy to  the  ancient  real  warranty,  and  the  assumed  impropriety 
of  applying  a  different  rule  to  the  covenant  of  quiet  enjoyment, 
from  that  which  governs  the  covenant  of  seisin.  But  the  rule 
adopted  in  regard  to  the  real  warranty  was  established  when 
improvements  were  much  more  rare  and  far  less  rapid  than  at 
}he  present  day ;  and  there  seems  no  reason  which  forbids  a 
^rantor  from  giving  a  more  effectual  remedy  against  a  jDrospec- 
tive  than  an  immediate  failure  of  title  ;  nor  is  it  easy  to  say 
why  the  price  should  be  arbitrarily  fixed  on  as  the  absolute 
measure  of  value  in  regard  to  lands,  when  in  regard  to  chattels 
it  is  only  iwima  facie  evidence  of  that  value. 

There  seems  great  doubt,  too,  whether  sufficient  attention  has 
been  paid  to  the  words  of  the  covenant.  What  is  the  meaning 
of  the  phrase  ^"^ quiet  enjoyment"  in  regard  to  a  city  lot,  for 
instance,  which  is  of  no  use  but  for  buildings,  on  which  erec- 
tions must  be  contemplated  at  the  time  of  purchase  by  both 


174  REAL   COVENANTS.  [CH.    VI. 

parties,  and  of  which,  without  such  erections,  no  cnjofjmcnt  can 
be  had  ?  May  not  a  distinction  be  well  taken  between  this 
covenant  applied  to  such  property  and  to  farming  land  ? 

We  shall  iind,  also,  that  in  our  sister  States  much  diversity  of 
opinion  exists ;  though  the  rule  is  too  well  settled  in  New  York 
to  be  shaken  * 

In  the  case  above  cited  (Staats  v.  Ten  Eyck's  Ex'ors),  it  had 
been  said  that  the  interest  allowed  should  be  commensurate 
with  the  legal  claim  to  mesne  profits.  And  in  an  action  f 
brought  by  executors  for  a  breach  of  the  covenant  of  seisin,  a 
verdict  was  taken  by  consent  for  the  plaintiffs,  for  the 
[165]  consideration  money  expressed  in  the  deed,  with  interest 
from  the  date  to  the  time  of  trial ;  but  it  appearing  that 
the  premises  had  been  actually  enjoyed,  and  the  mesne  profits 
taken  by  the  grantee,  they  were  only  allowed  six  years'  inter- 
est, and  a  deduction  was  accordingly  made.  The  principle  of 
these  decisions  was  affirmed  in  a  subsequent  case,  %  where  in  an 
action  of  covenant,  an  eviction  being  proved,  the  plaintift'  was 
only  allowed  to  recover  the  consideration  money  paid,  interest 
for  six  years  thereon,  and  the  costs  of  the  eviction  suit.^  And 
the  general  rule  has  been  since  repeatedly  recognized  in  New 
Yorlv.§2 

*  It  may  be  noticed  here  that  the  revisers  of  See  the  chapter  on  Alienation  by  Deed  (part 

the  Statutes  of  New  York  proposed  to  tix  the  ii.  ch.  1,  art.  iv.  R.  S.  vol.  iii.  p.  573),  which 

measure  of  damages  for  eviction,  at  the  value  suffered  sadly  in  the  hands  of  the  legislature, 

of  the  premises  at   the  time  of  eviction,  with  t  Bennet  v.  Jenkins,  13  J.  K.  50. 

interest  and  costs,  and  reasonable  expenses  of  \  Caulkins  and  others,  Ex'rs  of  Albee  v. 

defending  the  title.      But  if  the  consideration  Harris,  9  J.  R.  324. 

were  paid  in  money,  it  was  to  be  taken  as  the  §  Kane  v.  Sanger,  14  J.  R.  89 ;  Baldwin  v. 

value  of  the  premises;  and  in  case  of  partial  Munn,  2  Wend.  3'J9  ;  JJimmick  v.  Lockwood, 

eviction,  the  value  of  a  part  was  to  be  estimated  10  Wend.   149;  Kinney  v.  Watts,   14   Wend, 

in  proportion  to  the  price  paid  for  the  whole.  38  ;  Moak  v.  Johnson,  1  Hill,  99  ;  and  Kelly 

But   this  provision  was  not   hnally   adopted,  i;.  Dutch  Church  of  Schenectady,  2  Hill,  105. 


1  See  the  same  rule  laid  down  in  an  action  by  an  assignee  of  the  covenant  in  Baxter  v. 
Ryerss,  13  Barb.  (N.  Y.)  267.  So  also  in  Illinois,  Harding  v.  Larkin,  41  111.  413.  The  costs, 
in  Illinois,  include  counsel  fees. 

In  California,  also,  counsel  fees  are  allowed.  Levitzky  v.  Canning,  33  Cal.  299,  a  case  in 
which  the  eviction  suit  was  unsuccessful. 

2  That  the  law  is  thus  settled  in  this  and  many  other  States  is  unquestionable.  But  it  must 
be  regarded  as  a  rule  adopted  rather  from  its  expediency,  or  perhaps  necessity,  than  from  its 
abstract  justice.  In  this  countiy  especially,  where  the  rise  in  real  property  is  often  extremely 
rapid,  and  the  expectation  of  it  not  infre(piently  forms  to  a  shrewd  purchaser  the  inducement 
to  the  investment,  there  seems  no  intrinsic  equity  in  giving  to  a  vendee  as  the  sole  com- 
pensation for  his  eviction  from  valuable  real  estate  through  the  vendor's  breach  of  covenant, 
even  if  an  innocent  one,  the  original  purchase  money  and  interest,  which  often  together 
amount  only  to  a  small  proportion  of  the  actual  value  of  the  ]n-operty.  The  rule  must  find  its 
defense,  perhaps  a  sufficient  one,  in  considerations  of  puMic  policy,  since  the  amount  of 
damages  necessary  to  compensate  the  vendee  might  in  some  cases  ruin  an  innocent  vendor. 
We  observe  that  the  Supreme  Court  of  Ohio,  in  a  late  case,  while  recognizing  the  rule  stated 
in  the  text  as  settled  in  that  State  (see  post,  170),  say  "  that  it  will  scarcely  ever  do  exact 
justice  to  both  parties,  beiug  more  or  less  than  a  just  comi)ensation."  Wade  v.  Comstock, 
\\  Ohio  St.  71. 


en.    ^1.]  DAMAGES    ON   EVICTION.  .  175 

Leases.  —  In  a  recent  case,*  the  principle  which  we  have  seen 
settled  in  regard  to  conveyances,  was  applied  to  leases.  The 
plaintiir  declared  on  a  lease  upon  an  implied  covenant  for  quiet 
enjoyment.  The  court  held,  that  no  such  covenant  could  be 
implied ;  ^  but  that,  if  there  were  an  express  one,  the  tenant, 
not  having  paid  any  purchase  money  on  obtaining  the  lease, 
would  be  entitled  to  nominal  damages  only,  and  this  although 
he  had  made  valuable  improvements  on  the  premises,  —  saying, 
"  A  lease  where  no  purchase  money  is  paid  by  the  lessee,  does 
not  difter  in  principle  in  this  respect  from  an  ordinary  convey- 
ance in  fee  for  a  valuable  consideration."  ^ 

In  a  subsequent  case,  f  it  seems  to  have  been  thought  that 
under  the  covenant  for  quiet  enjoyment,  the  lessee  might,  on 
eviction,  recover  the  value  of  the  lease,  less  the  rent  reserved ; 
but  by  a  still  later  decision,^  the  arbitrary  rule  which  in  regard 
to  conveyances,  as  we  have  seen,  takes  the  price  paid  to  be  the 
value  of  the  land,  was  laid  down  in  regard  to  leases ;  and  Mr. 
Justice  Bronson  said,  — 

"  Following  that  analogy,  the  rents  reserved  in  a  lease  where  no  other  consid- 
eration is  paid,  must  be  regarded  as  a  just  equivalent  for  the  use  of  the  demised 
premises.  The  parties  have  agreed  so  to  consider  it.  In  case  of  eviction  the 
rent  ceases,  and  the  lessee  is  relieved  from  a  burden  which  must  be  deemed  equal 
to  the  benefit  which  he  would  have  derived  from  the  continued  enjoyment 
of  the  property.  Having  lost  nothing,  he  can  recover  no  damages.  He  ["1661 
is,  however,  entitled  to  the  costs  he  has  been  put  to  ;  and  as  he  is  answer- 
able to  the  true  owner  for  the  mesne  profits  of  the  land  for  a  period  pot  exceed- 
ing six  years,  he  may  recover  back  the  rent  he  has  paid  during  that  time  with 
the  interest  thereon.  If  this  rule  will  not  always  afford  a  sufficient  indemnity  to 
the  lessee,  I  can  only  say,  as  has  often  been  said  in  relation  to  a  purchaser,  he 
should  protect  himself  by  requiring  other  covenants." 

*  Kinney  i'.  Watts,  14  Wend.  38.  %  Kelly  v.  The  Dutch  Church  of  Schenec- 

t  Moak  V.  Johnson,  1  Hill,  99.  tady,  2  Hill,  105. 


1  But  see  The  Mayor,  &c.,  of  New  York  v.  Mabie,  3  Kern.  151,  where  it  is  held  by  the  New 
York  Court  of  Appeals  that  a  covenant  for  quiet  enjoyment  might  be  implied  from  a  lease,  a 
lease  not  being  a  "  conveyance  "  within  the  sense  of  2  Rev.  Stat.  738,  §  14U  ;  and  that  in  an 
action  for  rent,  damages  for  breach  of  this  implied  covenant  might  be  the  subject  of  recoup- 
ment. 

'^  In  case  of  eviction  from  demised  premises  where  there  was  no  fraud  or  misrepresentation 
of  the  lessor  inducing  the  taking  of  the  lease,  the  measure  of  damages,  if  rent  has  been  paid  in 
advance,  is  so  much  of  the  advanced  moneys  as  would  be  payable  at  the  stipulated  rate  for  the 
unexpired  part  of  the  lease,  with  interest.  If  no  rent  has  been  paid  in  advance,  no  damages 
can  be  recovered  by  the  lessee.  His  liability  to  pay  rent  would  cease  from  the  time  of  the 
eviction.  Ui>on  an  executory  contract  to  give  a  lease,  and  a  failure  or  refusal  to  give  one,  the 
rule  of  damages  is  the  same,  if  the  inability  or  refusal  is  without  any  fault  or  fraud  on  the  part 
of  the  party  promising  to  execute  it.  Where  the  refusal  to  give  a  lease  results  from  the  fraudu- 
lent conduct  of  the  defendant,  consequent  special  damages,  on  proper  allegations  in  the  com- 
plaint, may  be  recovered.     Noyes  v.  Anderson,  1  Duer  (N.  Y.),  342. 


176  .  REAL   COVENANTS.  [CH.    VI. 

This  rule  destroys  the  value  of  all  the  usual  covenants  in 
leases,  and  is  against  the  general  principle  in  regard  to  chattels, 
by  which  we  shall  see  that  if  a  warranty  in  regard  to  them  fails, 
the  plaintift'  is  entitled  to  recover  the  difference  between  their 
actual  value  and  that  which  they  would  have  had  if  the  warranty 
had  been  complied  with.  It  is  very  frequently  the  case,  tliat  the 
rent  in  leases,  especially  where  ground-rent  for  a  long  term  is 
reserved,  does  not  represent  their  real  value  to  the  lessee ;  that 
the  lease  or  its  good-will,  as  it  is  sometimes  erroneously  termed, 
is  of  great  actual  value;  and  that  on  an  eviction  the  tenant  must 
suffer  positive  loss.  Why  should  a  covenant,  using  the  expres- 
sive phrase  quiet  enjoymenL  be  frittered  away  by  an  arbitrary 
assumption  that  the  price  paid  was  the  real  value  ?  ^ 

1  But  the  rule  of  damages  for  breach  of  this  covenant  in  a  lease  was  lately  considered  by  the 
English  Common  Fleas,  and  the  author's  opinion  approved.  The  very  reasonable  principle  was 
laid  down  that  the  plaintiff  is  entitled  to  recover  what  he  has  actually  lost. 

Where  one  who  had  executed  to  a  tenant  in  occupation  of  premises  a  reversionary  lease  of 
them  for  a  term  of  years,  for  which  he  had  received  a  premium,  died  before  the  commencement 
of  the  intended  term,  and  the  reversionary  lease  proved  void  for  want  of  power  in  the  decedent 
to  grant  it,  and  the  intended  lessee  was  compelled  to  accept  another  lease  from  another  party 
for  a  much  shorter  term  and  at  a  higher  rent,  it  was  held  by  the  English  Court  of  Common 
Pleas  in  an  action  by  the  lessee  against  the  legal  representatives  of  the  original  lessor,  that  the 
measure  of  the  plaintiffs  damages  was  the  premium  paid  for  the  void  lease  together  with  the 
difference  in  the  value  of  the  two  leases,  and  the  excess  of  expenses  of  the  new  lease  over  those 
of  the  lirst.     The  cost  of  consulting  counsel  and  surveyors  was  deducted  by  consent. 

Erie,  C.  J.,  used  the  following  language  :  — 

"  It  appears  from  Sedgwick  on  Damages,  that  although  in  many  of  the  American  Courts  the 
rule  is  as  contended  for  by  the  defendant  (which  was  the  premium  and  expenses  on  the  first 
lease  which  had  been  paid  into  court),  yet  the  impression  of  the  writer  is  the  other  way.  There 
is  therefore  no  authority  against  our  judgment;  there  is  an  authority  for  it,  and  there  is  the 
almost  universal  rule,  that  a  party  who  breaks  his  contract,  ought  to  pay  the  damages  arising 
from  such  breach." 

On  appeal  this  case  was  affinned  on  full  consideration  by  the  Exchequer  Chamber  the  court 
holding  that  the  rule  in  Flureau  v.  Thornhill,  2  W.  B.  1078,  (ante,  69)  could  not  be  extended 
to  the  case  of  a  lease  granted  by  one  who  had  no  title.  "  The  true  measure  for  the  breach  of  a 
contract  such  as  this,"  said  Mr.  Justice  Blackburn,  "  is  what  the  plaintiff  has  lost  by  the 
breach.  There  is  no  real  difference  in  this  respect  between  a  contract  for  the  sale  of  real  prop- 
erty and  a  contract  for  the  sale  of  a  chattel."  The  same  conclusion  was  reached  by  all  the 
members  of  the  court.  Locke  v.  Turze,  34  L.  J.  (N.  S.)  C.  P.  201 ;  19  C.  B.  (N.  S.)  96  :  1  L.  R. 
(C.  P.)441. 

On  general  principles  the  measure  of  dam.ages  upon  the  breach  of  covenants  for  title  is  the 
value  of  the  estate  lost  at  the  time  of  the  breach.  If  the  estate  has  been  by  improvement 
increased  in  value,  such  improvement  cannot  be  recovered  unless  it  were  within  the  contempla- 
tion of  the  parties  at  the  time  of  making  the  covenant.  "  In  England,  as  also  in  New  York  and 
many  others  of  the  States,  this  rule  has  been  departed  from,  and  where  there  has  been  no  fraud, 
an  arbitrary  rule  has  been  established  as  best  calculated  generally  to  subserve  the  ends  of  justice. 
By  this  rule  the  damages  upon  breach  of  covenant  of  title  is  the  price  paid  with  interest  not 
exceeding  six  years.  It  was  established  partly  in  analogy  to  the  ancient  remedy  on  the  war- 
ranty by  which  the  demandant  recovered  of  the  warrantor  other  lands  of  equal  vahie,  computed 
at  the  time  when  the  warranty  was  made,  but  probably  more  from  the  hardships  and  difiniculties 
which  it  was  conceived  might  attend  the  application  of  the  natural  rule.  The  same  rule  is 
applied  in  executory  contracts  to  convey  lands,  where  the  vendor  is  unable  to  perform  by  reason 
of  defective  title,  and  has  been  guilty  of  no  fraud.  But  I  understand  this  distinction  to  be  rec- 
ognized and  settled,  that  if  the  executory  vendor  has  it  in  his  power  j.o  perform  his  contract, 
and  refuses  to  do  so,  or  has  wrongfully  put  it  out  of  his  power,  he  takes  himself  without  this 
arbitrary  rule,  and  becomes  liable  under  the  general  rule  for  the  value  of  the  estate  at  the  time 
it  was  to  have  been  conveyed.  So  in  the  case  of  covenant  for  title  in  an  executed  convevance, 
if  the  covenantor  becomes  himself  an  actor  in  ousting  his  grantee,  he  puts  himself  without  the 
protection  of  this  arbitrary  rule  of  damages,  and  becomes  liable  upon  his  broken  covenant  for 
the  value  of  the  estate  he  was  instrumental  in  taking  from  his  grantee."  Per  Hasten,  J.,  Mack 


CH.    VI.]  DAMAGES    ON    EVICTION.  177 

Indeed  in  a  recent  case  in  the  same  State  the  arbitrary  valua- 
tion seems  to  have  been  abandoned,  where  an  agreement  in  the 
nature  of  a  lease  but  without  any  covenants  was  made  to  com- 
mence from  a  future  day,  and  the  owner  before  the  commence- 
ment of  the  term  leased  the  premises  to  another  party  ;  it  was 
held,  that  the  original  lessee  was  not  limited  to  his  action  of 
ejectment;  that  he  might  sue  the  lessor  for  the  breach  of  the 
implied  agreement  to  give  him  possession ;  and  that  in  such 
action  the  measure  of  damages  would  be  the  difference  between 
the  rent  reserved  in  the  lease  and  the  value  of  the  premises  for 
the  term  *  ^ 

The  general  rule,  as  settled  in  New  York,  in  regard  to  con- 
veyances, was  adopted  at  an  early  day  in  Pennsylvania,  and  the 
price  of  the  land  at  the  date  of  the  deed  was  taken  as  the 
measure  of  damages.!  ^  But  it  does  not  appear  by  the  case  to 
what  cause  the  increased  value  was  to  be  ascribed. 

It  has  been  otherwise  held  in  Massachusetts,  Connecticut, 
Virginia,  "and  South  Carolina. 

Massachusetts.  —  In  Massachusetts,  in  a  case  t  in  which  the 
action  was  brought  on  the  covenant  of  warranty.  Parsons,  C.  J., 
delivering  the  judgment  of  the  supreme  court  of  that  State,  said, 
"  The  court  were  of  opinion,  conformably  to  the  principles  of  law 
applied  to  personal  actions  of  covenant  broken,  to  the  ancient 
usages  of  the  State,  and  to  the  decisions  of  our  ^predecessors, 
supported  by  the  practice  of  the  legislature,  that  the  plaintiff  in 
the  action  ouo-ht  to  recover  in  damaores  the  value  of  the  estate 
at  the  time  of  the  eviction."  The  land  in  this  case  had  risen 
from  $9,000  to  $15,000,  but  whether  by  reason  of  actual  improve- 
ments is  not  stated.* 

*  Trull  V.  Granger,  8  N.  Y.  115.  cided  in  1807).  See  also,  Sumner  v.  Williams, 
t  Bender  v.  Frombergcr,  4  Dall.  4.36,  441.  ^     8  Mass.  162,  222. 

X  Gore  V.  Braizer,  3  Mass.  523,  534.     (De- 

r.  Patchin,  29  How.  (N.  Y.)  20.  So  in  Chatterton  v.  Fox,  5  Duer  (N.  Y.),  64,  it  was  held,  the 
eviction  having  been  tortious,  that  the  tenant  might  recover  the  difference  between  the  value  of 
his  lease  for  the  unexpired  term,  and  the  rent  reserved.  See  also,  Marquart  v.  La  Farge, 
5  Ibid.  559. 

1  Dean  V.  Eoeslcr,  1  Hilt.  420. 

^  Hertzog  v.  Hertzog,  34  Penn.  St.  418  ;  McNair  v.  Compton,  35  Penn.  St.  23  ;  Dumars  v. 
Miller,  34  Penn.  St.  319  ;  Cox  v.  Henry,  32  Penn.  St.  18.  And  the  rule  is  the  same  in  that_ 
State  as  to  leases.  M'Clowry  v.  Croghan,  31  Penn.  St.  22.  Interest  is  added  to  the  amount  of 
the  consideration  unless  it  be  improved  land  and  the  purchaser  has  been  in  possession.  In  such 
case  his  claim  to  interest  is  extinguished  except  for  that  part  of  the  time  for  which  he  is  liable 
to  account  for  mesne  profits.     Cox  v.  Henry,  32  Penn.  St.  18. 

*  Approved  and  followed  in  Brown  v.  Di'ckcrson,  12  Penn.  St.  372. 

*  So  in  Vermont,  in  this  class  of  actions,  damages  are  measured  with  an  unstinted  hand.  In 
a  suit  for  breach  of  covenant  of  warranty  in  a  deed,  the  rule  of  danuiges  was  lately  held  to  be 
the  value  of  the  land  at  the  time  of  the  eviction,  the  costs  and  damages  which  the  plaintiff  had 
been  compelled  to  pay  in  the  ejectment  suit  with  interest,  and  his  own  costs  with  interest 

12 


178  REAL    COVENANTS.  [CH.    VI. 

[1G7]  In  a  later  case,*  it  was  held  by  the  same  court,  that,  as 
there  was  a  «ovenant  of  warranty  in  the  deed,  if  the  plain- 
tiff had  been  evicted,  the  jury  shovdd  consider  the  value  of  the 
land  at  the  time  of  the  eviction  as  the  proper  measure  of 
damages;  but  there  being  no  eviction,  it  was  held  that  the 
measure  of  damages  on  the  covenant  of  seisin  was  the  price 
paid,  and  interest.!  ^ 

But  the  same  court  decided,!  that  where  administrators  had 
conveyed  a  defective  title  with  this  covenant,  it  was  broken  at 
the  moment  of  execution,  and  that  the  measure  of  damages  was 
the  consideration  in  the  deed  and  interest ;  "  or,  at  most,  that 
amount  together  with  the  plaintiff's  expenses  of  defending  the 
possession," 

The  rule  as  above  established  in  Massachusetts,  that  where 
the  covenant  is  in  the  future,  and  the  estate  in  the  mean  time 
passes  by  force  of  the  conveyance,  and  the  grantee  becomes 
seised,  and  is  afterwards  evicted  by  a  paramount  title,  the  value 
of  the  estate  at  the  time  of  the  eviction  is  the  measure  of  the 
plaintiff's  damages,  —  has  been  repeatedly  since  held  in  that 
k5tate.§  But  it  has  been  recently  said,||  that  this  rule  may  be 
modified  by  special  circumstances ;  as,  for  instance,  "  a  case  may 
be  supposed  where  an  outstanding  mortgage,  though  assuming 
the  form  of  a  paramount  title,  which  if  not  redeemed  would 
take  the  whole  estate,  and  evict  the  covenantee,  yet  being  very 
small  in  comparison  with  the  value  of  the  estate,  it  woidd  be 
plainly  for  the  interest  of  the  owner  and  holder  of  the  equity  of 
redemption  to  redeem.    In  such  case  it  would  be  quite  unreason- 

*  Caswell?;.  Wendell,  4  Mass.  108.     (1808.)  Mass.  329;    see  also,  Bacon  v.   Callender,  6 

\  In  1807  (ch.  7.5,  §  3),  an  act  was  passed  in  Mass.  303  ;  Runey  v.  Edmonds,  15  Mass.  291  ; 

Massachusetts,    allowing    the    tenant    in    real  Shaw  v.  Bradstreet,  13  Mass.  241  ;   Chapel  v. 

actions,  in  certain  cases,  compensation  for  his  Bull,  17  Mass.  213;  Heath  v.  Wells,  5  Pick. 

improvements,  and  giving  the  demandant  the  140  ;    The   Society   v.    Wheeler,   2    Gallisou, 

increased  value  of  the  premises,  less  the  im-  105. 

provements,  the  provisions  of  which  are  in-  J  Sumner  r.  Williams,  8  Mass.  162,  221. 

corporated  in  the  revision  of  1836,  c.  101.    Har-  §  Norton  v.  Babcock,  2  Met.  510,  518. 

ris  V.  Newell,  8  Mass.  262  ;  Knox  v.  Hook,  12  H  Wliite  v.  Whitney,  3  Met.  81,  89. 

and  necessary  expenses,  including  counsel  fees.     Keeler  v.  Wood,  30  Vermont  (1  Shaw),  242. 
See  also  Williams  v.  Wetherbee,  2  Aik.  329. 

1  If  the  action  in  that  State  be  brought  on  the  covenant  of  seisin  and  good  right  to  convey, 
the  measure  is  the  consideration  paid  with  interest  from  the  date  of  the  deed.  If  the  considera- 
tion cannot  be  ascertained,  the  value  of  the  land  at  the  time  of  the  intended  conveyance,  with 
interest  from  the  date  of  the  intended  deed,  will  be  the  measure.  Smith  v.  Strong,  14  Pick.  128. 
And  where  in  such  an  action,  the  conveyance  is  made  to  the  grantee  at  the  request  of  a  third 
person  who  has  bought  the  land  of  the  grantor  after  agreeing  to  convey  it  to  the  grantee  in 
satisfaction  of  a  debt,  the  measure,  if  no  consideration  was  actually  paid  by  the  grantee  to  the 
grantor,  is  the  value  of  the  land  with  interest  from  the  date  of  the  deed.  Byrnes  v.  Rich, 
5  Gray  (Mass.),  518.  In  the  same  State,  in  an  action  for  breach  of  a  covenant  of  warranty  by 
eviction  under  a  mortgage,  it  was  held  that  the  plaintiff  having  paid  the  mortgage  before  judg- 
ment might  recover  the  whole  amount  of  it,  although  he  had  previously  conveyed  the  estate  to 
one  who  assumed,  as  a  part  of  the  consideration  of  that  conveyance,  to  pay  part  of  the  mort- 
gage.    Estabrook  v.  Smith,  6  Gray  (Mass.),  572. 


J 


CH.    VI.]  DAMAGES    ON    EVICTION.  179 

able  to  hold  that  the  covenantee  in  such  an  eviction  should 
recover  damages  to  the  full  value  of  the  estate."  And  this 
doctrine  has  recently  been  re-affirmed.*  ^  It  is  to  be  borne  in 
mind,  that  in  Massachusetts  the  mortgagee  obtains  a  conditional 
judgment,  and  is  put  in  possession,  after  which  the  plaintiff  may 
discharge  the  incumbrance,  and  restore  himself  to  possession  by 
paying  the  debt,  with  interest  and  costs  of  suit ;  and  in  such  a 
case,  the  proper  rule  of  damages  was  held  to  be  the  amount  due 
on  the  mortgage,  with  the  costs  of  the  mortgage  suit  against 
the  plaintiff t 

Maine.  —  The  State  of  Maine  has  adhered  to  the  rule  [168] 
of  her  parent,  Massachusetts,  that  the  value  of  the  prem- 
ises at  the  time  of  the  eviction,  forms  the  necessary  damages ; 
and  to  this  have  there  been  added  the  expenses  reasonably  and 
actually  incurred  in  the  defense  of  the  suit  in  which  the  grantee 
was  evicted.^ 

Connecticut. — In  Connecticut,  as  early  as  1786,  the  same 
rule  was  declared.§  The  Superior  Court  said  that  in  suits  on 
the  covenant  of  warranty,  the  constant  rule  of  the  court  had 
been  to  ascertain  damages  by  the  value  of  the  land  at  the  time 
of  eviction.  But  the  action  being  on  a  covenant  of  seisin,  this 
rule  was  held  not  to  apply .^  It  was  said  that  the  purchaser 
might  bring  his  action  immediately  upon  discovering  that  his 
title  was  defective;  and  the  jury  having  computed  the  damages 
according  to  the  consideration  of  the  deed,  the  verdict  was  ac- 
cepted by  the  court. 

In  the  same  State  it  was  recently  said,  "  We  consider  the 
rule  to  have  been  long  since  settled  in  this  State,  that  upon  the 
covenant  of  seisin  the  plaintiff  has  a  right  to  recover  the  con- 
sideration money  and  interest,  and  on  the  covenant  of  war- 
ranty, the  value  of  the  land  at  the  time  of  eviction 

We  think,  too,  that  when  the  v^arrantor  has  been  vouched  in  to 
defend  his  title,  the  cost  which  the  plaintiff  has  actually  been 
put  to  is  a  fair  ground  of  damages."  || 

*  Donahoe  v.  Emerv,  9  Met.  63.  §  Horsford  v.  Wright,  Kirby,  3. 

t  Tufts  V.  Adams,  8  Pick.  547.  ;i  Sterling  v.  Peet,  14  Conn.  R.  245. 

}  Hardy  v.  Nelson,  27  Maine,  525. 

1  See  Byrnes  v.  Rich,  5  Gray  (Mass.),  518. 

2  In  the  same  State,  for  breach  of  covenant  of  seisin  in  an  early  case,  the  rule  was  held 
to  be,  for  one  piece  of  land  which  was  under  improvement,  the  consideration  paid  without 
interest ;  for  another  not  improved,  the  consideration  and  interest.  Castle  v.  Pierce,  2  Root, 
294. 

And  in  the  same  State,  the  rule  as  to  the  covenant  of  seisin  is  the  same  whether  the  grantee 
has  been  in  possession  or  not,  for  the  money  due  for  rents  and  profits  has  no  relation  to  the 
covenant  broken,  but  constitutes  a  separate  debt.     Mitchell  v.  Hazen,  4  Conn.  495. 


180  REAL    COVENANTS.  [cil.    VI. 

South  Carolina.  —  In  South  Carolin<a,  tlie  same  rule  was  at 
first  adopted.*  It  was  held  at  Nisi  Prius,  in  an  action  of  cove- 
nant brought  for  a  breach  of  warranty  in  a  release  of  a  lot  of 
land  in  Charleston,  by  Pendleton,  J.,  "  that  there  can  be  no 
doubt  but  that  the  measure  of  estimating  damages  in  a  case 
like  the  present,  is  the  value  of  the  land  at  the  time  of  the 
eviction  ; "  but  only  a  part  of  the  lot  being  taken,  it  was  left 
to  the  jury  to  apportion  the  damages  according  to  the  amount 
of  injury  sustained,  or  give  the  full  amount  of  the  value  of  the 
lot ;  which  latter  was  done.  In  a  subsequent  action  of  cove- 
nant on  warranty,!  there  was  a  difference  of  opinion  on  this 
point,  Grimke,  J.,  thinking  the  purchase  money  and  interest 
was  the  true  rule.  But  Waties  and  Bay,  JJ.,  thought 
[1G9]  the  value  of  the  lands  at  the  time  of  the  eviction  was 
the  best  general  rule  ;  and  on  this  principle  the  verdict 
was  given. 

In  an  action  of  warranty  of  negroes,$  an  attempt  was  made 
to  apply  the  same  principle  to  chattels ;  but  while  the  general 
rule  was  acknowledged,  the  particular  case  was  considered  an 
exception,  and  the  court  left  it  to  the  jury  to  give  what  they 
thought  reasonable.  Finally,  in  a  subsequent  case,  the  prior 
decisions  were  distinctly  overruled,  and  the  New  York  rule  was 
adopted.§  ^ 

New  Haimpshire.  —  In  New  Hampshire,  the  rule  of  damages 
in  the  covenant  of  warranty,  as  to  whether  it  should  be  the 
value  of  the  land  at  the  time  of  the  purchase  or  of  the  evic- 
tion, was  recently  discussed  but  left  unsettled.]]  ^ 

*  Liber  et  al.  v.  Parson's  Ex'rs,  1  Bay,  19.  §  Henniiig  v.   Withers,   3    Brevard,   458  ; 

(1785.)  Ware   v.   Weathnall,  2   M'Cord's   Rep.   413; 

t  The  Ex'rs  of   Guerard  v.  Rivers,  1  Bay,  Bond  v.  Qnattlebaum,  1  Ibid.  584,  and  statute 

265.     (1792.)  of  1824;  Furinan  ?;.  Elmore,  2  Nott&M'Cord, 

t  Eveleigh  v.    Stitt's   Adm'rs,    1    Bay,   92.  189. 

(1789.)  II  Loomis  v.  Bedell,  11  N.  H.  R.  74. 

1  The  New  York  rule,  from  considerations  of  policy  and  convenience,  is  adopted  in  most  of 
the  States.  So  in  Texas:  Hall  v.  York,  22  Tex.  641  ;  Sutton  i>.  Page,  4  Tex.  142.  Iowa: 
Brandt  v.  Foster,  5  Iowa,  287.  Pennsylvania:  McClure  v.  Gamble,  27  Penn.  St.  288.  And 
see  supra,  166,  note  2.  Georgia  :  Martin  v.  Gordon,  24  Geo.  533  ;  Richardson  v.  Keerly,  22 
Geo.  62.  Missouri ;  CofFman  v.  Huck,  19  Mo.  435  ;  Tong  v.  Matthews,  23  Ibid.  437.  And  the 
rule  is  the  same  in  actions  by  the  purchaser  against  the  vendor  for  failure  to  convey.  Fletcher 
V.  Button,  6  Barb.  646.  So  also  in  an  action  on  a  bond  of  a  grantor  of  land  to  record  his 
title  deeds.  Brazier  v.  Wynkoop,  3  Johns.  Cases,  2d  ed.  440.  In  Wilson  v.  Dmmrite  (24  Mo. 
304),  the  same  rule  of  damages  was  applied  to  the  eviction  of  a  mortgagee;  and  in  IJickson 
V.  Desire  (23  Ibid.  151),  the  purchase  money  was  said  to  be  the  measure,  no  question  as  to 
interest  being  raised.  In  addition  to  the  consideration  money  and  the  interest,  the  expenses 
of  plaintiff  in  defending  the  possession  have  been  allowed.  Fernander  v.  Dunn,  19  Geo.  497  ; 
Willson  V.  Willson,  5  Post.  (N.  H.)  229.  See  also,  Phipps  v.  Tarpley,  31  Miss.  433;  Baxter 
V.  Rverss,  13  Barb.  267.  So  also  in  House  v.  House,  10  Paige,  158;  Blake  v.  Burnham,  29 
Vt.  437. 

-  In  this  State  it  is  now  settled,  that  the  measure  of  damages  for  a  breach  of  the  covenants 
of  seisin  and  good  right  to  convey,  is  the  consideration  money  and  interest.     Nutting  v.  Her- 


CH.  vl]  damages  on  eviction.  181 

Virginia.  —  In  Virginia  it  was  very  early  said,*  that  if  a 
conveyance  had  been  made  with  warranty,  the  value  of  the 
land  at  the  time  of  eviction  would  fix  the  damages.  This,  how- 
ever, Avas  in  equity ;  and  the  rule  in  that  State  seems  to  have 
been  long  involved  in  doubt.  In  a  later  case,t  while  the  rule 
as  just  stated  was  again  recognized,  it  was  held  not  to  apply  to 
a  conveyance  of  land  with  a  general  warranty  of  a  specific 
quantity  when  the  quantity  fell  short,  and  the  value  of  the  de- 
ficiency was  fixed  at  the  time  of  the  contract.  In  another 
case,t  the  doctrine  of  the  last  decision  was  followed.  But  the 
rule  we  are  considering  does  not  appear  to  have  controlled 
either  of  these  cases;  and  more  recently,§  the  whole  subject 
w\as  carefully  examined  by  Green  and  Coalter,  JJ.,  in  able  and 
conflicting  opinions ;  but  the  case  went  off  on  another  ground, 
Brooke,  J.,  reserving  his  opinion.  And  the  final  decision  seems 
to  be  that  the  purchase  money,  interest,  and  costs  of  eviction, 
fix  the  measure  of  compensation. || 

Tennessee.  —  In  Tennessee,  the  purchase  money  with  interest 
makes  the  measure  of  remuneration.^ 

Kentucky.  —  So,  too,  in  Kentucky,  where  it  was  held  by  the 
Court  of  Appeals,  that  in  case  of  a  covenant  of  war- 
ranty and  eviction,  "  the  value  of  the  land  at  the  time  [170] 
of  sale  to  be  ascertained  by  the  purchase  money,  if  ex- 
pressed in  the  deed  or  known,  together  with  interest  thereon, 
and  the  costs  extraordinary,  as  well  as  legal  expenses  in 
defense  of  the  title,  is  the  measure  of  damages  to  be  recov- 
ered ;  but  if  the  purchase  money  be  not  expressed  in  the  deed, 
other  means  may  be  used  to  ascertain  its  value."  The  case 
was  in  chancery.** 

*  Mills  y.  Bell,  3  Call,  323.     (1802.)  questions  have  been  much  considered  in  the 

t  Nelson  v.  Matthews,  2  Hen.  &  Mun.  164.  various  States  of  the  Union;  and  the  fullow- 

(1808.)  in<;  cases  may  be  noted.     In  North  Carolina, 

t  Humphreys'     Adra'r     v.     M'Clenachan's  Wilson  v.  Forbes,  2  Dev.  N.  C.  Kep.  30.     In 

Adm'r,  1  Mun.  493.  Kentucky,  Seamore  v.  Harlan,  3  Dana's  Ken. 

§  Stout    V.    Jackson,    2     Randolph,    132.  Rep.   410,   415.     In    Illinois,   Buckmaster  v. 

(1823.)  Grundv,   1    Scamnion's   Rep.  312;   M'Kee  w. 

li  Threlkeld  r.  Fitzhujih,  2  Leigh,  451.  Brandon,  2   Ibid.  339.     In   Maine,  Swett  v. 

1  Talbot  f.  Bedford,  5  Hall's  Am.  Law  J.  Patrick,  3  Fairf.  9.  In  Vermont,  Strong 
330,  cited  in  notes  to  Duvall  v.  Craig,  2  v.  Shumway,  D.  Chipman's  Rep.  110;  Park  i'. 
Wheat.  45,  61,  and  Shawr.  Wilkins,  Adm'r,  8  Bates,  12  Vermont  Rep.  381.  In  Louisiana, 
Humphreys,  647.  See  also,  in  Sumner  v.  Bissell  v.  Erwin,  13  La.  Rep.  143.  In  Ten- 
Williams,  4  Hall's  Am.  Law  J.  129,  147,  the  nessee,  Talbot  v.  Bedford,  5  Hall's  Am.  Law 
opinion  of  Luther  Martin.  J.  330  ;  Hopkins  v.  Yowell,  5  Yerger,  305.  In 

**  Cox's  Heirs  v.  Strode,  2  Bibb,  273.  These  Virginia,  Lowther  v.  Commonwealth,  1   H.  & 

bert,  35  N.  H.  120;  37  N.  H.  346 ;  Foster  v.  Thompson,  41  N.  H.  373.  Sec  Ela  v.  Card,  2 
N.  H.  175  ;  Drew  v.  Towle,  10  Fost.  (N.  H.)  531.  But  rests  are  not  allowable  in  computing 
interest.     Ibid. 


182  REAL    COVENANTS.  [ciI.    VI. 

Ohio.  —  In  Ohio,  in  actions  on  the  covenants  of  seisin  and 
quiet  enjojnnent,  the  measure  of  damages,  as  a  general  rule, 
has  been  adjudged  to  be  the  consideration  money  and  interest ; 
and  this  rule  has  been  applied  to  suits  on  the  w^arranty  of  title. 
But  in  that  State,  in  an  action  on  a  covenant  of  warranty  of 
title,  where  the  plaintiff  had  occupied  the  premises  from  the 
date  of  the  conveyance,  the  enjoyment  was  declared  to  be 
equivalent  to  the  interest  upon  the  consideration,  and  no  inter- 
est as  such  to  be  recoverable.  But  as  the  plaintiff  might  be 
compelled  to  account  for  the  rents  and  profits  for  four 
[171]  i/ears,  to  the  true  owner,  he  was  held  entitled  to  recover 
interest  for  four  years  in  the  suit  on  the  covenant.*  ^ 

In  the  same  State,  where  the  covenant  of  warranty  is  broken 
by  reason  of  an  assignment  of  dower  by  metes  and  bounds,  the 
damages  will  be  not  to  the  extent  of  the  consideration  money, 
or  of  one  third  of  the  consideration  money  of  the  deed,  but  the 
extent  to  which  the  value  of  the  estate  is  diminished  by  carv- 
ing out  the  life  estate,  taking  one  third  of  the  consideration 
money  to  be  the  value  of  one  third  of  the  fee  simple  interest.!  ^ 

Partial  Eviction.  —  Where  the  eviction  complained  of  is 
partial,  the  recovery  is  proportioned  to  the  value  of  the  part  of 
the  premises  to  which  the  title  has  failed.  ^     So  in  New  York,  % 

Munf.    202 ;    Crenshaw    v.    Smith,   5    Munf.  throughout  the  United  States."      Supposing 

415;  Wilson  v.   Spencer,  11   Leigh,  261.     In  this  to  be  so,  subject  to  the  above  exceptions. 

New  Jersey,  Stewart  v.  Drake,   4   Halsted's  it  may  still  be  doubted  whether  interest  should 

Rep.  139.     In  Arkansas.  Logan  v.  Moulder,  1  be  allowed  in  any  case  where   the   property 

Ark.  R.  323.     In  Indiana,  Blackwell   i\  The  has  been  enjoyed  by   the  grantee,  unless  he 

Justices  of  Lawrence  County,  2  Bl.ackford's  has  been  actually  compelled  to  pay  the  mesne 

Ind.   Rep.   143,  in  nods;  Sheets   v.  Andrews,  profits.     Interest  is  given    to    counterbalance 

2  Ibid.  274.     In  Ohio,  Adm'r  of  Backus  v.  the  claim  of  the  true  owner  for  mesne  profits  ; 

M'Coy,  3   Ham.   Ohio,  211;  Dustin  i;.  New-  but  even   after  eviction,  the  loss  of  the  mesne 

comer,  8  Ohio,  49 ;  Foote  y.  Burnet,  10  Ohio,  profits  does  not  necessarily  follow;    and,   as 

317.     "  The  ultimate  extent,"  says  Chancellor  we  have  heretofore  seen,  the  law  does  not  give 

Kent  (vol.  iv.  p.  476),  to   whose  laborious   re-  actual  compensation    for  probable    loss.       Ante, 

search  I  am  indebted  for  the  authorities  in  108. 

this  note,  "of  the  vendor's  responsibility  un-  *  Cl.ark  v.  Parr,  14  Ohio,  118. 

der  all  or  any  of  the  usual  covenants  in  the  t  Johnson  v.  Nyce,  17  Ohio,  66. 

deed,  is  the   purchase  money  with   interest;  J  Morris  i;.  Phelps,  5  J.  R.  49  ;  recognized 

and  this  I  presume  to  be  the  prevalent  rule  in  Guthrie  v.  Pugsley,  12  J.  R.  126. 

1  Wade  V.  Comstock,  11  Ohio  St.  71.  So  in  Vermont,  where  the  plaintiff  in  an  action  for 
the  breach  of  his  covenant  of  seisin,  had  had  the  use  of  the  premises  without  liability  to  ac- 
count for  the  mesne  profits,  the  purchase  money  alone  without  interest  was  held  to  be  the 
measure  of  damages.     Flint  v.  Steadman,  36  Vermont,  210. 

2  In  the  same  State,  the  grantee's  costs  and  counsel  fees  in  defending  the  widow's  claim  are 
also  allowed.     McAlpin  v.  Woodruff,  11  Ohio  St.  120. 

The  conveyance  of  two  thirds  of  a  piece  of  real  estate  by  one  who  is  seised  in  fee,  subject 
to  an  outstanding  right  of  dower,  does  not  affect  that  right.  The  covenant  of  warranty  is 
broken  on  the  delivery  of  the  deed,  and  if  the  part  subsequently  set  off  to  the  widow  for  her 
life  exceeds  in  value  one  third  of  the  whole,  the  grantee  will  be  entitled  to  damages  equivalent 
to  the  proportionate  diminution  in  value  of  the  estate  conveyed.  If  the  part  set  off  does  not 
exceed  one  third  in  value,  the  damages  will  be  nominal  only.  Blanchard  v.  Blanchard,  48 
Maine,  174. 

'^  Hunt  V.  Orwig,  17  B.  Monr.  (Ky.)  73  ;  Beaupland  v.  McKeen,  28  Penn.  St.  124  ;  Walker 
i;.  Johnson,  8  Eng.  (Ark.)  522 ;  Kerly  v.  Richardson,  17  Ga.  602. 


CH.   VI.]  DAMAGES    ON    PARTIAL   EVICTION.  183 

where  action  was  brought  on  the  covenant  of  seisin,  the  title  to 
part  of  the  premises  having  failed,  it  was  insisted,  on  the 
authority  of  an  English  case,*  that  this  partial  fliilure  of  title 
gave  the  plaintiff  a  right  to  recover  the  entire  purchase  money. 
But  the  court  held  otherwise :  that  it  was  competent  for  the 
defendant  to  show  that  the  part  in  regard  to  which  the  title  had 
failed,  was  of  inferior  quality  to  the  other  portion  conveyed  ; 
and  that  the  true  measure  of  damages  was  the  value  of  the 
part  to  which  the  title  had  failed,  taken  in  proportion  to  the 
price  of  the  whole ;  the  whole  computation  being  on  the  basis 
of  the  consideration  money.-^  This  rule  was  deduced  by  Kent, 
C.  J.,  from  the  Year  Books,!  and  enforced  by  the  analogies  of 
the  civil  law.  "  Quod  enhn,"  says  Ulpian,  "  si  quod  in  agro  pretio- 
sissimum,  hoc  evidum  est ;  aid  quod  ftdt  in  agro  vilissimwn  ?  cestima- 
bitur  loci  qualitas,  et  sic  erit  regressus."  %  The  same  principle  is 
also  recognized  by  Pothier.§ 

In  a  recent  case  in  Massachusetts,  it  was  contended  that  the 
damages  should  be  determined  by  the  proportion  in  quantity 
which  the  part  to  which  the  title  had  failed  bore  to  the  residue  ; 
but  the  court  said,  "  This  is  not  a  just  rule,  for  the  value  may 
be  unequal.  The  true  and  just  rule  is,  that  the  proportional 
value,  and  not  the  quantity,  of  the  several  parts  of  the  land 
should  be  the  measure  of  damages."  ||  [1*^2] 

Assuming  it  to  be  settled  that  the  consideration  paid 
furnishes  the  rule  of  damages,  it  still  remains  to  be  seen  how 
far  the  price  named  as  paid  and  received  in  the  deed,  is  con- 
clusive proof  of  that  consideration.  In  England,  the  cases  are 
conflicting,  and  the  rule  appears  to  be  against  the  admission  of 
parol  proof  to   contradict  the  deed.][     In  a  recent  case,**  the 

*  Farrer  v.  Nightingal,  2  Esp.  C.  639.  T.  R.  474  ;  Rowntree  y.  Jacob,  2  Taunt.  141  ; 

t  29  E.  III.  4,  and  13  E.  IV.  3.     See  also,  Villers  v.  Beaniont,    2  Dy.  146  a;  Mildmay's 

Gray  v.  Briscoe,  Noy,  142 ;  ante,  162.  case,  1   Rep.   176  ;  Vernon's  case,  4  Rep.  3  ; 

X  Dig.  21,  2  1.  1,1.  13,  and  1.  64,  §  3.  Peacock  v.  Monk,  1  Ves.  sen.  128 ;  Craythorne 

§  Contrat  de  Vente,  No.  99,  139,  142.  v.   Swinburne,     14    Ves.    159;    Lanipon     v. 

II  Cornell   v.  Jackson,  3   Cush.  506.      See  Corke,  5  Barn.  &  Aid.  606. 
also,  in  Ohio,  Michael  v.  Mills,  17  Ohio,  601.  **  Baker  v.  Dewey,  1  Barn.  &  Cres.  704. 

IT  King  "•  Inhabitants  of  Scammonden,  3 

1  See  Griffin  v.  Reynolds,  17  How.  609  ;  Furniss  v.  Ferguson,  15  N.  Y.  437.  So  in  Indiana, 
Hoot  I'.  Spade,  20  Ind.  326  ;  Phillips  v.  Reichert,  17  Ind.  120  ;  Wiley  v.  Howard,  15  Ind.  169  ; 
Iowa,  Brandt  v.  Foster,  5  Iowa,  287  ;  and  Illinois,  Major  v.  Dunnavant,  25  111.  262.  Interest 
also  is  allowed  on  the  proportion  of  the  consideration  paid  for  the  part  of  the  land  to  which 
the  title  has  failed.  Ibid.  Compensation  will  be  given  only  for  what  is  lost,  and  the  damages 
made  to  correspond  with  the  real  injury.  If  there  is  a  partial  breach  of  the  covenant  of 
seisin,  the  grantee  may  recover  ;jro  tanto.  If  he  has  been  obliged  to  buy  an  outstanding  title, 
he  may  deduct  from  the  purchase  money  the  amount  necessarily  and  hona  fide  paid  for  that 
purpose.     Brandt  v.  Foster,  5  Iowa,  287. 

In  the  tenant's  action  against  his  landlord  for  damages  for  expulsion  from  the  premises 
before  the  end  of  his  lease,  improvements  jjlaced  on  the  premises  by  the  tenant  rendering  them 
more  productive,  are  properly  considered  by  the  jury  as  showing  the  extent  ot  his  damage. 
Ricketts  v.  Lostetter,  19  Ind.  125. 


184  REAL    COVENANTS.  [CH.    VI. 

Court  of  King's  Bench  said,  —  "The  deed  states  the  whole  pur- 
chase money  to  be  w^ell  and  truly  paid.  The  parol  evidence  is 
that  it  never  was  paid,  but  a  great  part  of  it  kept  back  ;  and 
that  fact  is  wholly  inconsistent  with  the  statement  in  the  deed, 
and  therefore  ought  not  to  have  been  received  in  evidence." 
But  it  seems  to  be  well  settled  in  this  country,  that,  as  between 
the  original  parties  to  the  transfer,  the  consideration  clause  is 
open  to  parol  proof,*  at  least  so  far  as  to  permit  the  grantor  to 
show  that  the  price  of  the  property  was  not,  in  point  of  fact, 
paid. 

Admissibility  of  Parol  Proof.  —  But  however  the  rule  may 
be  in  general,  there  may  again  arise  a  question  whether  the 
consideration  clause  is  open  to  parol  proof,  for  the  purpose  of 
reducing  or  enhancing  the  damages ;  as,  for  instance,  if  a  mere 
nominal  consideration  be  inserted,  will  that  defeat  all  but  a 
nominal  recovery,  or  can  the  party  evicted  show  the  actual 
price  paid  ?  A  very  accomplished  judge  has  held  this  lan- 
guage :  t  "  Where  the  deed  contains  no  covenant  but 
[173]  that  of  seisin  or  general  warranty,  the  consideration  is 
not  inserted  as  a  mere  matter  of  form,  nor  for  the  sole 
purpose  of  giving  effect  and  operation  to  the  deed ;  but  it  is 
inserted  for  the  further  purpose  of  fixing  the  amount  of  dam- 
ages to  which  the  grantee  will  be  entitled,  in  case  he  is  evicted. 
At  least,  such  are  my  present  impressions,  though  my  brethren 
are  inclined  to  a  different  conclusion.  But  it  is  not  now  neces- 
sary to  decide  the  question." 

I  submit,  however,  with  deference,  that  any  distinction,  as  to 
the  purpose  for  which  parol  proof  is  admitted,  cannot  be  main- 
tained. If  good  for  one  end,  it  must  be  good  as  to  all.  It 
would  be  a  solecism  for  the  tribunal  to  admit  evidence  to  in- 
fluence their  minds  as  to  one  result,  and  to  exclude  it  as  to 
another.  If  a  fact  be  established,  all  its  legitimate  results  must 
follow,  whether  as  to  rights  or  remedies  ;  and  so  it  seems  to  be 
now  at  length  definitely  settled  in  New  York.  In  a  recent  case, 
Jewett,  J.,  delivering  the  opinion  of  the  Court  of  Appeals, 
said,  —  "  It  is  well  settled  that  for  the  purpose  of  ascertaining 
the  damages  to  which  a  plaintiff  may  be  entitled  in  an  action 

*  See  the  English  and  American  cases  elab-  pose  of  destroying  the  effect  and  operation  of 

orately  reviewed  in  the  Court  of  Errors  in  the  deed ;    though  it  may  be  denied  for  the 

New  York,  in  McCrea  r.  Purmort,  16  Wend,  purpose  of  recovering  the  consideration  money. 

460.      See  also,   Grout  v.  Townsend,  2  Hill,  This  doctrine  is  now,  in  this  court,  supported 

S.')?.     In  New  Jersey,  see  the  subject  exam-  by  such  a  weight  of  authority  as  not  readily 

ined  in   Bolles   v.   Beach,   2   Zabriskie,    680,  to  be  disturbed." 

where  it  is  said,  "  When   the  deed  acknowl-        t  Greenvault  v.   Davis,   4    Hill,   643,   per 

etlges   the   payment  of  the   consideration,   it  Bronson,  J. 
cannot  be  denied  by  the  grantor,  for  the  pur- 


CH.    VI.]  CONSIDERATION    PAH).  185 

at  law  for  the  breach  of  the  covenant  of  seisin  in  a  deed,  the 
true  consideration,  and  that  all  or  any  part  remains  unpaid,  may 
be  shown,  notwithstanding  a  different  consideration  is  expressed 
in  the  deed,  and  although  it  contains  an  acknowledgment,  on 
the  part  of  the  grantor,  that  it  has  been  paid  at  the  time  of  or 
before  the  execution  of  the  deed."  *  In  the  sister  States  of  the 
Union,  also,  it  seems  to  be  now  generally  held  that  parol  proof 
is  admissible  as  to  the  quantum  of  consideration  paid.f 

But,  though  parol  proof  may  be  admitted  as  between  the 
original  parties,  it  is  well  settled  in  New  York  that  if  the 
grantee  has  transferred  the  land,  the  consideration  named  is 
conclusive  as  between  his  assigns  and  the  original  grantor,  at 
least  as  against  the  latter.  In  a  case  already  cited,:^  Bronson, 
J.,  said,  "  It  would  work  the  grossest  injustice  to  allow  the 
covenantor  to  go  into  the  question  of  how  much  was  actually 
paid  for  the  land,  when  the  title  has  failed  in  the  hands  of  an 
assignee."  In  this  case  it  was  held  the  grantor  could  not  be 
allowed,  as  against  the  assignee,  to  show  that  the  price  paid 
was  less  than  that  named  in  the  deed ;  but  perhaps  the  same 
reasons  do  not  apply  against  the  assignee,  if  desirous  to 
prove  the  price  greater.  \X^^li 

Actual  Compensation  the  Fundamental  Rule.  —  In  regard  to 
all  the  real  covenants,  although  the  courts  have  felt  themselves 
bound  to  adopt  the  arbitrary  rules  which  we  have  stated,  as  to 
the  price  paid,  still  the  constant  effort  is  to  give  compensation 
for  what  is  actually  lost ;  not  to  allow  any  remuneration  for  a 
mere  technical  breach  of  agreement ;  to  make  the  measure  of 
damages  correspond  with  the  real  injury  sustained,  and  not  to 
permit  an  action  where  no  loss  has  been  suffered.  So  in  Mas- 
sachusetts, it  has  been  held  that  "  the  grantee  of  land  with 
warranty,  who  has  conveyed  all  his  interest  therein  with  war- 
ranty, cannot  maintain  an  action  against  his  grantor  for  a 
breach  of  the  warranty,  subsequently  occurring,  unless  he  is 
compelled  to  pay  damage  on  his  own  covenant  of  warranty  or 
obtains  a  release  of  the  same  from  his  grantee ;  "  and  the 
court  said,  "  The  plaintiff  has  not  suffered  any  damage,  and  he 
may  never  sustain  any.  He  is  liable  on  his  warranty,  it  is  true  ; 
but  before  he  has  suffered  he  cannot  sue  for  indemnity,  there 
being  no  certainty  that  he  ever  will  be  damnified."  §  So,  in  an 
action  on  this  covenant  in  New  York,  where  the  plaintiff  had 

*  Bingham    v.    Weiderwax,    I    Comstock,  N.   Hamp.   R.   229 ;    Belden  v.   Seymour,   8 

509.  Conn.  R.  304. 

t  Garrett  v.  Stuart,  1  M'Cord,  514  ;  Bullard  %  Greenvault  v.  Davis,  4  Hill,  643,  649. 

V.  Briggs,  7  Pick.  533  ;  Morse  v.  Shattuck,  4  §  Wheeler  v.  Sohier,  3  Gush.  219. 


186  REAL    COVENANTS.  [CH.    VI. 

been  ousted  of  a  portion  of  the  premises  by  a  third  party,  who 
had  a  superior  title,  but  for  a  term  of  years  only,  it  was  held 
by  the  Supreme  Court  that  the  measure  of  damages  was  not 
the  consideration  money  of  the  land  of  which  the  phiintift*  was 
dispossessed  and  interest,  but  the  annual  value  thereof,  or  the  in- 
terest of  the  consideration  money  paid  for  the  land  for  the 
period  of  the  term  ;  and  that  the  costs  and  counsel  fees  of  the 
plaintiff's  defense  to  the  termor's  suit,  were  all  properly  in- 
cluded* In  Massachusetts,  in  a  similar  case,  we  have  already 
seen  that  counsel  fees  were  not  allowed.!  ^ 

In  New  Hampshire,  it  appears  to  be  well  settled,  that  in  a 
suit  brought  on  the  covenant  of  warranty,  where  the  grantee 
has  purchased  in  the  paramount  title,  he  can  recover  no  more 
than  the  amount  paid,  with  compensation  for  his  trouble  and 
expenses.t  ^ 

[175]         Covenants  of  ^Seisin.  —  Having   thus  examined    the 
covenants  of  warranty  and  for  quiet  enjoyment,  we  come 
next  to  that  of  seisin,  or  that  the  grantor  has  good  right  to  con- 
vey, for  they  are  substantially  the  same. 

In  regard  to  this  covenant,  it  is  not  necessary  to  allege  by 
way  of  breach,  an  ouster  or  eviction.  All  that  is  requisite  is  to 
negative  the  words  of  the  covenant.§  If,  at  the  time  of  the 
execution  of  the  deed,  the  grantor  does  not  own  the  land,  the 
covenant  is  broken,  as  we  have  seen,  immediately  ;  and  in  such 
a  case,  in  Massachusetts,  it  was  said,||  "  The  rule  for  assessing 
the  damages  arising  from  this  breach,  is  very  clear.  No  land 
passing  by  the  defendant's  deed  to  the  plaintiff,  he  has  lost  no 
land  by  the  breach  of  this  covenant ;  he  has  lost  only  the  con- 
sideration he  paid  for  it.  This  he  is  entitled  to  recover  back, 
with  interest  to  this  time."  *j  ^  In  New  York,**  in  an  action  for 
the  breach  of  this  covenant,  it  appeared  that  there  was  only  a 
partial  failure  ;  the  grantors  having  the  fee  in  two  sixths  of  the 
premises  conveyed,  and  a  life  estate  in  the  remainder.     The 

*  Rickert  V.  Snyder,  9  Wend.  416.     See  this         §  Rickert  r.  Snyder,  3  Wend.  416;  Kent's 

case  commented  on  in  Batehelder  v.  Sturgis,  Com.  vol.  iv.  p.  479. 
3   Cash.    201,  where   the   Supreme   Court  of        ||  Bickford  j;.  Page,  2  Mass.  455,  461. 
Massachusetts  say  they  are  not  prepared   en-        If  See,  to  the  same  point,  Caswell  v.  Wen- 

tirely  to  adopt  it.  dell,  4  Mass.   108;  Chapel  v.  Bull,  17  Mass. 

t  Aiite,  99,  et  seq.  213  ;  Jenkins  v.  Hopkins,  8  Pick.  346. 

t  Loomis  V.  Bedel,  11  N.  H.  R.  74.  **  Guthrie  v.  Pugsley,  12  Johns.  R.  126. 

1  In  Ohio,  a  grantee  evicted  of  a  part  of  the  conveyed  premises  by  the  assignment  of  a 
widow's  dower,  is  entitled  to  his  costs  and  counsel  fees  in  resisting  the  widow's  claim.  McAl- 
pin  V.  Woodruff,  11  Ohio  St.  120. 

^  And  it  has  been  held  in  the  same  State  that  if  the  grantee  cannot  remove  the  incumbrance 
he  may  recover  damages  for  his  injury.     Willson  v.  Willson,  5  Post.  (N.  H.)  229. 

^  See  Smith  v.  Strong,  14  Pick.  128 ;  Byrnes  v.  Rich,  5  Gray,  518,  awte,  167,  note  1. 


CH.    VI.]  COVENANT    OF    SEISIN.  187 

court  said,  "  There  is  no  settled  rule  of  law  to  ascertain  the 
damages  in  such  a  case,  without  having  a  jury  to  assess  them, 
as  they  must  depend  principally  upon  the  value  of  the  estate 
during  the  lives  of  the  defendants,  which  must  be  deducted 
from  four  sixths  of  the  consideration  money.  Nor  ought  inter- 
est to  be  allowed  during  their  lives ;  for  no  one,  during  that 
time,  will  have  a  right  to  turn  the  plaintiff  out  of  possession, 
or  call  on  him  for  the  mesne  profits." 

In  New  Hampshire,  in  an  action  on  the  covenants  of  seisin 
in  fee  and  right  to  convey,  it  was  said,  that  "  the  two  cove- 
nants were  synonymous,  and  each  amounts  only  to  a  stipulation 
that  the  grantee  has  such  a  seisin,  that  the  land  will  pass  by 
the  deed."  *  And  the  court  proceeded  to  say,  "  It  has  been 
settled  in  this  State  too  long  to  be  now  questioned  (and 
it  is  deeply  to  be  regretted  that  it  is  so  settled),  that  he  [176] 
who  has  a  good  title  to  land  which  is  in  the  adverse  pos- 
session of  another,  has,  so  long  as  he  has  a  right  of  entry,  such 
a  seisin  that  the  land  will  pass  by  his  deed."  f 

The  general  rule  on  the  covenant  of  seisin  undoubtedly  is, 
that  the  vendee  recovers  his  consideration  money  and  interest 
upon  the  ground  that  this  is  his  actual  loss.  But  where  it  is 
apparent  that  his  loss  has  been  really  less,  he  is  limited  to  the 
amount  of  injury  sustained.^  So  in  Maine,  where  land  was 
conveyed  with  covenant  of  seisin,  and  it  appeared  that,  at  the 
time  of  the  conveyance,  there  was  an  outstanding  paramount 
title,  and  about  seventeen  years  after  the  purchase,  the  plaintiff, 
who  had  been  all  the  time  in  possession,  was  obliged  to  pur- 
chase in  the  outstanding  title,  it  was  held  that  he  was  not  en- 
titled to  recover  the  whole  original  consideration  money  with 
interest,  but  only  the  amount  paid  to  perfect  the  title,  with 
interest  from  the  time  of  payment.  In  this  case,  it  was  urged 
that  the  plaintiff  derived  no  rents  or  profits  from  the  prem- 
ises ;  but  the  court  said,  "  We  think  that  cannot  be  taken  into 
consideration  to  affect  the  rights  of  the  parties.     If  a  person 

*  This,  however,  is   not  absolutely  true ;  age,  the  one  covenant  would  be  broken  and 

for   if  husband   and   wife   convey  with   cove-  the  other  not.     Sugden,  Vend.  &  Purch.  404, 

nants  of  seisin,   and  of  right  to  convey,  and  406. 

they  are  seised  in  fee,  but  the  wife  is  under  t  Willard  v.  Twitchell,  1  N.  H.  R.  177. 

1  Herndon  v.  Harrison,  34  Miss.  486  ;  Blossom  v.  Knox,  3  Chandl.  (Wis.)  295  ;  Weiting  v. 
Nissley,  13  Penn.  St.  654  ;  Nutting  v.  Herbert,  37  N.  H.  346.  If  no  consideration  is  paid, 
nominal  damages  only  are  recoverable.     Ibid. 

So,  where  the  grantor,  after  breach  of  the  covenant,  and  even  after  suit  brought  for  the 
breach,  acquires  the  title,  such  subsequently  acquired  title,  enuring  to  the  grantee,  goes  in  miti- 
gation of  damages.     King  v.  Gilson's  Adm'rs,  32  111.  348. 

In  Indiana,  in  an  action  for  breach  of  the  covenant  of  seisin,  while  the  purchaser  retains  the 
deed  and  possession,  the  want  of  title  in  the  vendor  will  not  entitle  him  to  recover  more  than 
nominal  damages.     Hacker  v.  Blake,  17  Ind.  97  ;  Small  v.  Reeves,  14  Ind.  164. 


188  REAL    COVENANTS.  [CH.    VI. 

purchase  real  estate,  it  is  to  be  presumed  that  he  does  so 
because  the  rents  and  profits  of  it  will  be  equivalent  to  the  inter- 
est of  the  money  he  may  be  content  to  pay  for  it.  Whether  the 
vendee  turns  his  purchase  to  a  profit  or  a  loss,  is  no  concern 
of  the  vendors."  * 

So,  also,  in  New  York,  where  the  defendant,  being  tenant  for 
life,  with  remainder  over,  conveyed  with  covenant  of  seisin  in 
fee,  in  a  suit  on  this  covenant,  the  plaintiff,  having  been  in 
possession  from  the  time  of  the  conveyance,  was  allowed  to 
recover  the  consideration  money  without  interest,  deducting 
therefrom  the  value  of  the  life  estate.f 

So  in  Maine,  in  an  action  on  this  covenant,  it  appeared  that 
the  grantor  was  not  seised  at  the  time  of  execution  of 
[177]  the  deed,  and  the  covenant  was  therefore  broken  ;  but 
that  he  had  subsequently  acquired  a  title  which  was  held 
to  enure  to  the  grantee  by  estoppel ;  and  the  grantee  not  hav- 
ing been  disturbed  in  his  possession,  it  was  considered  that  the 
plaintiff  could  recover  nominal  damages  only,  and  the  Supreme 
Court  said,  — 

"  The  rules  which  have  been  established  to  determine  the  measure  of  damages, 
upon  the  breach  of  covenants  in  deeds  for  the  conveyance  of  real  estate,  have 
been  framed  with  a  view  to  give  the  party  entitled  a  fair  indemnity  for  the  dam- 
ages he  has  sustained.  Thus,  if  the  covenant  of  seisin  is  broken,  as  thereby  the 
title  wholly  fails,  the  law  restores  to  the  purchaser  the  consideration  paid,  which 
is  the  agreed  value  of  the  land,  with  interest.  But  in  this,  as  well  as  in  other 
covenants  usual  in  the  conveyance  of  real  estate,  if  there  exist  facts  or  circum- 
stances which  would  render  the  application  of  the  rule  inequitable,  they  are  to 
be  taken  into  consideration  by  a  jury.  The  covenant  was  intended  to  secure  to 
the  plaintiff  a  legal  seisin  in  the  land  conveyed.  If  it  is  broken,  and  he  fails  of 
that  seisin,  he  has  a  right  to  reclaim  the  purchase  money.  But  if,  in  virtue  of 
another  covenant  in  the  same  deed,  which  was  also  taken  to  assure  to  him  the 
subject-matter  of  the  conveyance,  he  has  obtained  that  seisin,  it  would  be  alto- 
gether inequitable  that  he  should  have  the  seisin,  and  be  allowed  besides  to  re- 
cover back  the  consideration  paid  for  it."  }  ^ 

But  a  release  of  land  without  warranty  to  a  third  person 
has  been  held  in  Massachusetts  not  to  prevent  a  grantee  from 

*  Spring  V.  Chase,  22  Maine,  505.  and  the  pLaintiff  not  being  evicted,  there  was 

t  Tanner  v.  Livingston,  12  Wend.  83.     In  evidently  no  ground  for  any  allowance  of  in- 

Spring  V.  Chase,  22   Maine,  505,  it  is  said,  terest,  which  is  only  given  to  cover  the  value 

speaking  of  this  case,  "  to  have  been  held,"  of  the  mesne  profits  that  it  is  supposed  the 

that  interest  was  not  recoverable ;  but  there  grantee  may  be  obliged  to  refund  to  the  rrue 

was  no  discussion  or  decision  as  to  the  mat-  owners. 

tor  of  interest;  it  was  the  ruHng  at  the  trial ;  |  Baxter  i;.  Bradbuiy,  20  Maine,  2  60.     See 

the  tenant  for  life,  however,  not  having  died,  also.  Whiting  v.  Dewey,  15  Pick.  428. 

-      ,  ^  Overhiser  v.  McCoUister,  10  Ind.  41 . 


CH.    VI.]  COVENANT   AGAINST    INCUMBRANCES.  189 

recovering  full  damages  against  his  grantor  for  a  breach  of  the 
covenant  of  seisin.* 

If  the  grantor  on  a  deed  containing  covenants  of  seisin  and 
warranty,  after  the  execution  of  the  deed,  recover  land 
included  in  it  of  which  he  was  not  in  fact  seised  at  the  time  of 
making  the  deed,  it  will  go  to  reduce  the  damages  pro  tanto.^ 

It  has  been  frequently  decided  in  actions  on  this  covenant, 
that  where  a  former  suit  has  taken  place  which  the  covenantee 
has  been  obliged  to  defend,  not  only  his  costs,  but  his  counsel 
fees  may  be  recovered  in  the  proceeding  on  the  covenant  itself  t 

AVhere  the  breach  of  the  covenant  consists  of  an  outstanding 
life  estate,  it  has  been  held  not  to  be  erroneous  to  give 
the  jury  printed  tables  to  compute  its  value  by,  as,  in  [178] 
Vermont,  those  of  Dr.  Wigglesworth.§ 

Covenant  against  Incumbrances. — We  proceed  now  to  con- 
sider the  rule  m  regard  to  the  covenant  against  incumbrances. 

And  on  this  subject  the  Supreme  Court  of  Massachusetts  has 
used  this  general  language,  that  the  defendant  is  to  make  good 
his  warranty ;  that  is,  he  is  to  pay  a  sum  of  money  which  will 
put  the  plaintifl'  in  as  good  a  state  as  if  he  had  kept  his  cove- 
nant. ||  ^  The  cases  arising  under  the  covenant  against  incum- 
brances resolve  themselves  into  three  general  heads.  First, 
where  the  incumbrance  consists  of  a  mortgage  or  other  debt 
which  is  already  due  and  which  the  plaintiff  has  paid  off.  Second, 
where  the  plaintiff  has  not  discharged  the  incumbrance,  though 
it  might  have  been  done.  Third,  where  the  incumbrance  con- 
sists of  a  mortgage  or  lease  not  expired,  or  servitude  of  any 
description,  which  the  plaintiff  cannot  discharge.  In  Massa- 
chusetts the  general  rule  has  been  laid  down  as  follows :  "  If  the 
covenantee  has  fairly  extinguished  the  incumbrances,  he  ouo-ht 
to  recover  the  expenses  necessarily  incurred  in  doing  it.  If  they 
remain  and  consist  of  mortgages  or  attachments,  and  such  liens 
on  the  estate  as  do  not  interfere  with  the  enjoyment  of  it  by  the 
covenantee,  he  can  only  recover  nominal  damages.^    But  if  they 

*  Cornell  v.  Jackson,  3  Cush.  506.  Thompson,  3  B.  &  P.  407  ;  Pitkins  v.  Leavitt, 

t  Ibid.  13  Verm.  E.  379  ;  Allen  v.  Blunt,  2  AVoodb. 

X  Staats  V.  Ex'rs  of  Ten  Eyck,  3  Caines'  &  M.  121. 

R.   Ill;  Kingsbury  v.   Smith,  "l3   N.  H.  R.  §  Mills  w.  Catlin,  22  Verm.  98. 

122;  Swett  v.  Patrick,  3  Fairf.  9  ;  Bcale  v.  \\  Thayer  y.  Clemence,  22  Pick.  490. 

1  And  when  a  vendee  with  covenants  of  warranty  buys  in  an  outstanding  or  paramount 
title,  the  rule  of  damages  for  the  breach  of  the  vendor's  covenant  is  the  amount  so  paid.  Hurd 
V.  Hall,  12  Wis.  112;  Bailey  v.  Scott,  13  AVis.  618;  Fawcett  v.  Woods,  5  Iowa,  400;  Law- 
less V.  Collier,  19  Mo.  480. 

2  In  accordance  with  the  great  principle  of  compensation,  which  will  constantly  furnish  the 
clew  to  lead  us  out  of  any  seeming  maze  in  the  application  of  the  rules  of  damages,  the  grantee, 
on  a  breach  of  a  covenant  against  incumbrances,  can  recover  such  damages  only  as  he  has 


190  REAL    COVENANTS.  [CU.    VI. 

are  of  a  permanent  nature,  and  such  as  the  covenantee  cannot 
remove,  he  should  recover  a  just  compensation  for  the  real  in- 
jury resulting  from  their  continuance."  *^  And  this  seems  the 
law  as  generally  received. 

Cases  in  New  York  and  New  England.  —  So  in  New  York,! 
it  was  held,  that  if  the  plaintiff  had  actually  extinguished  the 
incumbrance,  he  was  entitled  to  recover  the  amount  so  paid;^ 
but  if  not  extinguished,  that  then  he  could  only  recover  nom- 
inal damages  ;  and  the  doctrine  has  been  uniformly  adhered 
to  in  that  State. t^  And  on  the  same  principle,  in  regard  to 
the  mode  in  which  the  breach  of  this  covenant  must  be  set  out, 
it  is  held  in  New  York  §  not  to  be  sufficient  to  aver  that  the 
premises  are  not  unincumbered,  but   that   the  plaintiff  must 

allege  the  extinguishment  of  the  incumbrance. 
[179]        So  in  Massachusetts,  in    an    early  case.  Parsons,  C. 

*  Harlow  v.  Thomas,  15  Pick.  66,  69  j  t  Hall  v.  Dean,  13  J.  R.  105  ;  Standard  i;. 
Batchclder  v.  Stiirps,  3  Cush.  201.  Eldridge,  16  J.  R.  254. 

t  Delavergne  v.  Norris,  7  J.  R.  358.  §  Deforest  v.  Leete,  16  J.  R.  122. 

actually  sustained.  If  by  it  the  title  has  failed  and  the  premises  have  been  lost,  he  may 
recover  to  the  full  extent  of  the  covenant ;  or  if  he  has  removed  the  incumbrance,  he  may 
recover  the  sum  paid  for  the  purpose,  unless  it  exceeds  the  limits  of  the  covenant.  But  if  he 
has  not  been  disturbed  in  his  title,  or  has  paid  nothing  to  remove  the  incumbrance,  he  can 
recover  nominal  damages  only  for  the  breach.     Willets  v.  Burgess,  34  111.  494. 

Whether  the  incumbrance  be  a  judgment,  mortgage,  right  of  dower,  or  a  paramount  right 
to  the  land  or  some  part  of  it,  if  the  plaintiff  has  not  paid  off  the  mortgage  or  judgment,  or 
extinguished  the  right  of  dower  or  paramount  right,  as  the  case  may  be,  he  shall  recover  nom- 
inal damages  only.  The  reason  of  the  rule  is,  that  he  shall  not  be  permitted  to  recover  back 
the  consideration  paid  for  the  land  while  he  still  holds  it,  and  may  never  be  disturbed  in  his  pos- 
session. He  must  tirst  extinguish  the  incumbrance,  so  that  it  cannot  afterward  prejudice  the 
grantor,  before  he  will  be  permitted  to  recover  its  amount,  or  the  amount  fairh'  and  necessarily 
paid  to  extinguish  it.  Green  v.  Tallman,  20  N.  Y.  191  ;  Giles  v.  Dugro,  1  Duer's  R.  331  ; 
Stowell  V.  Bennett,  34  Me.  422.     See  Porter  v.  Bradley,  7  R.  I.  538 ;  post,  182,  note  1. 

But  where  the  vendor  agrees  to  pay  all  claims  against  the  lot  sold,  it  is  not  necessary  for  the 
purchaser  to  prove  that  a  judgment  which  is  a  lien  upon  the  premises  has  been  enforced,  or 
that  he  has  been  evicted.  The  non-payment  of  the  judgment  is  all  that  is  necessaiy  in  order 
to  show  a  breach  ;  and  the  rule  of  damages  upon  a  breach  is  the  amount  of  the  judgment  with 
interest.     Cady  v.  Allen,  22  Barb.  (N.  Y^)  388. 

The  grantee  may  sue  immediately  on  the  breach  of  the  covenant,  and  may  recover  sub- 
stantial damages  for  the  incumbrance  if  discharged  before  the  trial.  Preble  v.  Baldwin,  6 
Cush.  (M.ass.)  549. 

1  The  qualification  of  this  rule,  that  such  "real  injury"  must  be  the  injury  to  the  market 
value  of  the  estate,  is  not  erroneous.  Wetherbee  t;.  Bennett,  2  Allen,  428.  This  rule  is  re- 
affirmed in  Woodbury  v.  Luddy,  14  Allen,  1,  an  equity  case,  in  which,  on  account  of  special 
circumstances,  the  rule  was  held  inapplicable. 

Where  the  premises  were  sold  under  a  judgment  which  was  a  lien  on  them  at  the  time  of  the 
conveyance,  and  were  bid  in  by  the  vendee,  the  measure  of  his  damages  was  held  to  be  the 
amount  paid  by  him  with  interest,  and  "  perhaps  necessary  incidental  expenses."  Burk  v. 
Clements,  16  Ind.  132. 

2  So  in  Iowa,  Fawcett  v.  Woods,  5  Iowa,  400.  So  in  Alabama,  in  reference  to  money  paid 
to  remove  a  paramount  equitable  title.     Lewis  v.  Harris,  31  Ala.  689. 

"  And  where  in  the  same  State  a  grantor  had  covenanted  that  there  were  incumbrances 
on  the  estate  to  the  extent  of  $12,400  only,  and  they  amounted  in  fact  to  $12,800,  the 
grantee  having  paid  a  portion  of  them  to  an  amount  exceeding  $400,  was  held  entitled  to 
recover  that  sum,  and  was  not  restricted  to  nominal  damages.  Braman  v.  Bingham,  26 
N.  Y.  483. 


CH.    VI.]  COVENANT    AGAINST   INCUMBRANCES.  191 

J.,  said,  "A  purchaser  from  one  seised  is  not  obliged  to  wait 
in  painful  suspense  until  he  be  evicted,  before  he  can  obtain 
an  adequate  remedy;  but  as  soon  as  he  can  extinguish  the  in- 
cumbrance, he  may  call  on  his  grantor  for  an  indemnity."  So 
held  again  in  the  same  State,  that  the  damages  in  a  suit  on  the 
covenant  against  incumbrances  are  merely  nominal,  if  the 
plaintift'  has  paid  nothing  towards  their  discharge.*  So  in 
Maine,  it  has  been  decided  that  the  plaintiff  can  recover  nothing 
more  than  nominal  damages  for  a  breach  of  covenant  by  an 
incumbrance  no  longer  existing,  and  not  removed  at  his  ex- 
pense.! 

In  New  York,t  in  an  action  on  this  covenant,  the  plaintiff 
having  been  defeated  in  an  ejectment  suit,  and  judgment  ob- 
tained against  him,  the  Supreme  Court  held  that  he  was  entitled 
to  recover  the  consideration  named  in  his  deed,  with  interest, 
and  also  the  costs  of  the  proceeding  in  which  he  was  evicted.^ 

In  Massachusetts,  where  the  grantee  was  evicted  under  a 
paramount  title,  it  was  held  that  the  proper  measure  of  damages 
was  the  value  of  the  land,  with  interest  thereon  from  the  time 
of  the  eviction.§^ 

In  New  York,  the  following  question  was  raised. ||  Suit  was 
brought  on  the  covenant  against  incumbrances ;  the  declaration 
averred  that  the  plaintiff  purchased  the  land  in  question  for  two 
hundred  and  fifty  dollars,  and  put  on  improvements  to  the  value 
of  two  thousand  dollars ;  that  at  the  time  of  the  deed,  the 
premises  were  not  free  from  incumbrances,  but  that  they  were 
subject  to  a  judgment  for  upwards  of  three  thousand  dollars  on 
an  undivided  moiety  of  the  lot,  under  which  incumbrance  one 
half  was  sold.  Plea,  that  the  plaintiff  was  only  entitled  to  re- 
cover one  hundred  and  twenty-five  dollars,  one  half  of  the  con- 
sideration money  paid ;  and  tender  of  that  sum  j  demurrer  and 
joinder. 

*  Prescott  I'.  Truman,  4  Mass.  627  ;  Wyman  |  Waldo  v.  Long,  7  J.  E.  173. 

V.  Ballard,  12  Mass.  304  ;  and  Tufts  v.  Adams,  §  Barrett  v.  Porter,  14  Mass.  143. 

8  Pick.  547.  II  Dimmick  v.  Lockwood,  10  Wend.  149. 

t  Herrick  v.  Moore,  19  Maine,  313. 

1  "  All  the  reasoning  of  our  own  judges,"  says  Mr.  Justice  S.  B.  Strong  in  the  New  York 
Court  of  Appeals,  "  goes  to  limit  the  responsibility  of  the  grantor  to  the  consideration,  with 
interest  and  costs."     Greene  v.  Tallman,  20  N.  Y.  191. 

So  in  Indiana,  the  rule  is  the  purchase  money  and  interest.  Burton  v.  Eecds,  20  Ind.  87. 
Nor  is  the  grantor  in  that  State  entitled  to  recoup  the  rents  and  proiits,  unless  he  actually  paid 
them  to  the  holder  of  the  paramount  title.     Ibid. 

'■^  In  Louisiana,  under  the  Civil  Code,  a  purchaser  who  has  gone  into  possession  is  entitled 
only  to  recover  from  his  warrantor  the  price  paid,  with  interest  from  the  time  of  the  evic- 
tion. The  warrantor  is  not  liable  for  taxes  paid  by  his  vendee,  nor  his  counsel  fees  in  the 
action.  Hale  v.  New  Orleans,  13  La.  Ann.  499.  Nor  for  improvements  on  the  land  made  by 
the  vendee  after  the  bringing  of  a  suit  to  evict  him,  where  it  is  not  shown  that  the  improve- 
ments increased  the  value  of  the  land  or  benefited  the  warrantor.  Coleman  v.  Ballard,  13  La. 
Ann.  512. 


192  REAL    COVENANTS.  [CH.    VI. 

This  plea  proceeded  on  the  ground,  that  under  the 
[180]  covenant  against  incumbrances  the  plaintiff  can  only 
recover  the  consideration  paid,  and  nothing  for  his  im- 
provements. So  the  court  held,  and  gave  judgment  for  the  de- 
fendant. It  was  even  intimated  that  if  he  had  discharged  the 
incumbrance,  he  could  not  recover  the  amount  paid.  "  Suppose 
the  plaintiff,''  said  Savage,  C.  J.,  "  instead  of  building  a  house, 
had  paid  the  $3,000,  and  brought  this  suit  to  be  reimbursed,  he 
would  bring  himself  within  the  language  of  some  of  the  judges 
who  say  that  a  purchaser  is  entitled  to  recover  what  he  has 
paid  ;  and  yet  I  apprehend  he  would  not  be  permitted  to  recover 
that  amount."  The  court  laid  stress  on  the  admitted  fact,  that 
under  the  covenant  of  quiet  enjoyment,  only  the  consideration 
money  and  interest  could  be  recovered,  and  asked  why  more 
should  be  obtained  in  the  action  before  them. 

This  case  appears  open  to  much  observation :  it  may  not  be 
contrary  to  the  spirit  of  the  rule  in  regard  to  the  covenant  for 
quiet  enjoyment,  but  if  generally  applied,  it  appears  greatly  to 
diminish  the  value  of  the  covenant  against  incumbrances.  By 
surrendering  the  property  to  the  previous  incumbrance,  a  valid 
claim  may  always  be  created  to  the  extent  of  the  consideration 
money,  and  to  this  it  seems  the  recovery  under  this  covenant  is 
in  every  instance  to  be  limited.  A  case  may,  however,  easily  be 
imagined,  where  the  incumbrance  is  well  known,  where  the  con- 
sideration money  is  a  fair  representative  of  the  value  without 
the  incumbrance,  where  the  grantor  agrees  to  remove  it,  and  the 
covenant  against  incumbrances  is  inserted  for  the  express  pur- 
pose of  making  it  certain  that  he  will  do  so.  In  such  a  case  the 
application  of  this  principle  would  be  extremely  inequitable. 
For  it  must  not  be  forgotten  that  the  severity  of  the  arbitrary 
rule  which  declares  the  consideration  named  in  the  deed  to  be 
the  actual  price  paid,  is  but  little  mitigated  by  the  permission 
given  to  the  parties  to  contradict  it  by  parol  proof.  Such  evi- 
dence, after  the  lapse  of  a  few  years,  will  generally  be  difficult 
of  production,  in  many  cases  impossible,  and  the  mere  burden 
of  proof  is  always  a  serious  responsibility.  In  Massachusetts, 
also,  it  has  been  said,  that  the  general  rule  that  the  covenantor 
against  incumbrances  is  liable  to  refund  the  sum  paid  by  the 
grantee  to  extinguish  the  incumbrance,  must  be  taken  subject 
to  the  qualification  that  the  amount  thus  paid  does  not  exceed 
that  which  the  grantor  would  be  bound  to  pay  in  case  of  evic- 
tion. In  other  words,  he  cannot  be  made  liable  for 
[181]  more  than  the  value  of  the  estate.  But  it  will  be  ob- 
served, that  where  the  value  is  fixed  by  the  consider- 


CH.    VI.]  COVENANT   AGAINST   INCUMBRANCES.  193 

jitioii  money  paid,  as  in  New  York,  the  rule  becomes  a  very 
difterent  one  in  its  effect  from  what  it  is  where  the  actual  value 
at  the  time  of  eviction  is  taken,  as  in  Massachusetts.  In  this 
latter  case  there  appears  no  objection  to  it.* 

In  Massachusetts,  in  an  action  on  the  covenant  against  incum- 
brances, and  of  warranty,!  there  was  proved  a  deed  by  defend- 
ants to  plaintiffs  ;  that  in  the  conveyance  to  the  defendants,  the 
land  was  supposed  to  be  embraced,  but  it  was  not ;  that  subse- 
quent to  the  conveyance  by  defendants  to  plaintiffs,  the  original 
owners  entered,  and  plaintiff  surrendered,  and  afterwards  paid 
divers-  sums  to  extinguish  the  original  title.  The  plaintiffs 
claimed  the  sums  paid  to  extinguish  the  adverse  titles,  with 
charges  for  their  time  spent  in  extinguishing  them,  incidental 
expenses  for  horse  and  carriage  hire,  and  sums  paid  for  advice 
of  counsel  after  suit  brought.  The  latter  item  {^counsel  fees)  was 
disallowed  ;  but  the  other  expenses,  subsequent  to  the  service  of 
the  writ,  were  allowed. 

In  New  Hampshire,  in  an  action  brought  on  the  covenant 
ao;ainst  incumbrances,  the  breach  beino;  the  existence  of  a  hio-h- 
way,  to  contest  which  the  plaintiff,  induced  by  the  representa- 
tions of  the  defendant,  had  brought  a  suit  and  been  defeated,  it 
was  held  that  the  jury  might  include  the  costs  of  that  suit  in 
the  damages.^ 

In  Maine,  it  has  been  decided  in  a  suit  on  the  covenant 
against  incumbrances,  that  the  plaintiff  may  recover  the  amount 
paid  by  him  to  free  the  title,  although  so  paid  after  suit 
brouglit.§  And  so  it  has  been  held  in  Massachusetts  :  ||  and  in 
both  States  no  doubt  on  the  correct  ground  that,  the  cause  of 
action  accruing  before  the  commencement  of  the  suit  by  reason 
of  the  existence  of  the  incumbrance,  and  thus  a  claim  for 
nominal  damages  being  created,  the  payment  of  the  in-  [182] 
cumbrance  was  mere  matter  of  consequence,  which  the 
jury  should  take  into  consideration. 

Incumbrances  not  Due.  —  The  most  difficult  questions  as  to 
the  measure  of  compensation  on  this  covenant,  arise  under  the 
third  head  ;  where  the  incumbrances  are  still  outstanding.-^     In 

*  Norton  v.  Babcock,  2  Met.  510,  516.  §  Kellv  v.  Low,  18  Maine,  244. 

t  Leffingwell  v.  Elliott,  10  Pick.  204.  1|  Leffini,'-well    v.    Elliott,    10     Pick.    204  ; 

t  Ilayncs   v.    Stevens,    11    N.    H.    R.    28.     Brooks  y.  Moody,  20  Pick.  474  ;  anfe,  109. 
Would  it  not  have  been  more  proper  to  say 
that  these  costs  should  have  been  included  1 

1  This  covenant  being  one  of  indemnity  only,  the  general  rule  is  that  the  covenantor  shall 

recover  as  damages  a  sum  equal  to  the  injury  actually  sustained  at  the  time  the  action  is 

brought.     If  he  has  removed  the  incumbrance,  the  measure  of  damages  is  the  amount  paid 

not  exceetUng  the  consideration  money  and  interest.     If  the  incumbrance  is  outstanding  he  is 

13 


194  REAL    COVENANTS.  [CH.    VI. 

New  York  it  has  been  held,  that  where  the  covenant  has  been 
broken  by  reason  of  an  unexpired  lease,  the  rule  of  damages  is 
the  annual  value  of  the  estate,  or  the  annual  interest  on  the 
purchase  money.*  ^  The  Supreme  Court  of  Massacliusetts, 
while  refusing  to  adopt  this  as  a  general  rule,  have  said  that  in 
some  instances  it  may  be  correct ;  and  in  case  of  a  lease  out- 
stnnding,  they  have  said,  "  That  the  efiect  of  such  a  lease  on  the 
sale  of  the  estate  could  not  be  taken  as  the  true  rule ;  that  such 
effect  must  in  its  very  nature  be  imaginary,  and  supported  only 
by  speculative  opinions  and  conjectures ; "  and  that  "  it  was 
quite  too  loose  and  uncertain  a  mode  of  estimating  damages." 
Nor  will,  in  such  a  case,  the  fact  that  the  estate  was  purchased 
by  the  grantee  for  resale,  be  allowed  to  be  proved  in  order  to 
augment  the  damages,  unless  this  was  known  to  the  grantor.f  ^ 

Instead  of  the  general  covenant  that  the  premises  conveyed 
are  free  from  incumbrances,  we  sometimes  find  a  sj^ecial  agree- 
ment to  remove  certain  existing  incumbrances;  and  in  such  a 
case  in  England  it  has  been  held  that  the  amount  of  the  incum- 
brance  becomes  the  measure  of  damages.  So  in  an  action  by 
the  trustees  of  the  defendant's  wife  on  a  covenant  to  pay  off 
certain  incumbrances  to  the  amount  of  £19,000,  no  special 
damage  was  laid  in  the  declaration,  nor  proved,  and  judgment 
having  gone  by  default,  the  sheriff''s  jury  gave  only  nominal 
damages ;  but  on  motion  the  inquisition  was  set  aside ;  Lord 
Tenterden,  C.  J.,  saying,  "  If  the  plaintiffs  are  only  to  recover 
a  shilling  damages,  the  covenant  becomes  of  no  value ;  "  and 
Patterson,  J.,  said,  "  At  law  the  trustees  were  entitled  to  have 
this  estate  unincumbered.  How  could  that  be  enforced  unless 
they  could  recover  the  whole  amount  of  the  incumbrances,  in  an 
action  on  the  covenant  ?  "  $ 

*  Eiekert  v.  Snyder,  9  Wend.  416.  J  Lethbridge  v.  Mjtton,  2  B.  &  Adol.  772. 

t  Batchelder  v.  Sturgis,  3  Cush.  (Mass.)  201. 

ordinarily  entitled  to  nominal  damages  only,  though  where  the  incumbrance  is  continuous,  as 
in  the  case  of  casements,  servitudes,  and  unexpired  terms,  this  rule  does  not  apply.  Here, 
although  he  has  paid  nothing,  he  has  sustained,  and  is  constantly  sustaining,  injury,  to  the 
whole  extent  of  which  he  is  entitled  to  be  compensated  in  damages.  In  the  case  of  an  unex- 
pired term  or  lease,  the  proper  rule  is  the  fair  rental  value  of  the  land  to  the  end  of  the  term. 
Porter  v.  Bradley,  7  II.  I.  538. 

1  In  the  absence  of  fraud  in  an  action  brought  by  a  grantee  of  land  against  his  grantor  for 
breach  of  a  covenant  against  incumbrances,  the  measure  of  damages  is  the  actual  amount  or 
value  of  the  incumbrance,  and  where  the  purchaser  has  not  enjoyed  the  premises,  the  interest. 
No  consequential  damages  are  allowed.  "  The  reason  is  that  when  the  incumbrance  is  actually 
unknown  to  the  vendor,  as  is  generally  the  case  where  he  covenants  against  them,  the  means 
of  discovering  them  are,  or  with  proper  exertions  may  be,  equally  accessible  to  both  ]iarties. 
If  the  intended  ]iurchaser  should  make  proper  examination  he  would  ordinarily  discover  an 
incumbrance  which  must  be  in  writing,  and  the  evidence  on  record  ;  and  should  he  neglect  to 
do  that,  be  cannot  reasonably  claim  more  than  an  exemption  from  positive  loss."  Per  Strong, 
J.,  Greene  v.  Tallnuin,  20  N."  Y.  191. 

Where  there  is  a  paramount  title  in  a  third  party  not  purchased  by  the  A^endee,  the  measure 
of  the  jilaintiffs  damages  in  Iowa  is  the  consideration  paid  and  interest.  Fawcett  v.  Woods,  5 
Iowa,  400. 

2  See  Greene  v.  Creighton,  7  R.  I.  1 . 


CII.    VI.]  CONTRACTS    FOR    REAL   ESTATE.  195 

I  have  already  ventured  to  suggest,*  that  the  verdict 
in   such   a   case    should  be  for  nominal  damages  only.  [183] 
And  so,  I  apprehend,  it  would  certainly  be  held  in  this 
country,  in  conformity  to  those  general  rules  fixing  the  meas- 
ure of  damages   upon  this  covenant  which  we  have  above  con- 
sidered.^ 

In  Maine,  where  a  covenant  was  given  to  pay,  or  allow  in 
account,  a  certain  sum,  provided  certain  incumbrances  were  re- 
moved by  a  given  day,  and  they  were  removed,  but  not  till  a 
year  afterwards,  it  was  held,  that  such  deduction  must  be  made 
from  the  stipulated  sum  as  any  change  that  had  in  the  interim 
taken  place  in  the  value  of  the  property  might  render  just  and 
proper.!  In  Pennsylvania  it  is  lield,t  that  if  a  vendee  cove- 
nant to  pay  an  incumbrance  out  of  the  purchase  money,  and 
fail  to  do  so,  by  reason  of  which  the  land  is  sold  for  the  pay- 
ment of  the  incumbrance,  and  sells  for  a  price  exceeding  it,  he 
is  liable  to  the  vendor  for  damag-es,  the  measure  for  which  is 
the  difference  between  the  amount  for  which  the  land  is  sold, 
and  the  price  which  he  agreed  to  pay  for  it.§ 

We  shall  be  obliged  to  discuss  in  a  separate  place  the  rule  of 
damages  in  regard  to  covenants  generally  ;  but  this  appears  the 
proper  time  to  examine  the  measure  of  compensation  in  regard 
to  contracts  to  convey  or  purchase  real  estate,  or  any  interest 
therein.^ 

Contracts  for  Sale  of  Land.  —  These  agreements  usually 
under  seal,  may  be  broken  either  by  the  vendor  refusing  to 
convey,  or  by  the  vendee  refusing  to  pay  the  price. 

*  Ante,  111.  may  show,  by  way  of  defense,  that  the  incnm- 

t  Roberts  v.  Marston,  20  Maine,  275.  braiiee  ruferred  to  was  by  mistake  on)itted  to 

J  YoiiniT  V.  Stone,  4  Watts  &  Serg.  45.  be  excepted  from  its  operation  ;  and  that,  as 

§  In  New  York,  nnder  the  new  system  of  the  defendant  in  snch  action  conkl  not  liave 

procednre,  in    an    action  to  recover  damages  attirmative    relief  on    his    answer,    he    might 

for  the  breach  of  the  covenant  against  incnm-  bring  a  cross-action  to  reform  the  covenant. 

brances,  it  lias  been  held  that  the  defendant  Haire  v.  Baker,  1  Seld.  357. 


1  Snch  is  the  rule  in  Iowa.  Linder  v.  Lake,  6  Iowa  (Clarke),  164;  Funk  v.  Crcswcll,  5 
Iowa,  62.  In  Indiana,  on  the  breach  of  a  contract  to  remove  incumbrances,  the  measure  of 
the  recovery  is  now  held,  in  reversal  of  previous  decisions  in  that  State  (Schooley  v.  Stoops, 
4  Ind.  l.'iO,  aiul  Tate  v.  Booe,  9  Ind.  13),  to  be  the  amount  due  on  the  incnmbrance,  notwith- 
standing the  grantee  had  neither  paid  it  nor  been  evicted.  Johnson  v.  Britton,  23  Ind.  105. 
The  decision  is  baseil  in  part  on  the  i)rovisions  of  the  new  Code  of  rroceilure,  under  which 
courts  of  law  have  eipiity  jurisdiction,  the  distinction  between  actions  at  law  and  suits  in 
equity  is  abolished,  and  all  having  an  interest  in  a  controversy  may  be  made  parties  to  the 
suit. 

■^  In  an  action  on  a  bond  to  convey  within  a  stipulated  time  certain  lands  to  be  selected  by 
the  plaintiffs  intestate,  where  it  proved  that  the  lands  had  been  sold  when  the  obligee  applied 
for  the  conveyance,  tlie  measure  of  damages  was  held  to  be  the  value  of  such  land  as  the 
obligee  might  have  selected.     Loomis  v.  Wadhams,  8  Gray,  557. 


196  REAL    COVENANTS.  [CH.   VI. 

Actions  by  Vendee.  —  First,  where  the  vendor  refuses  or  is 
unable  to  convey.  We  have  ahxnicly  had  occasion  to  notice  a 
case  of  this  kind  where  all  profit  for  the  loss  of  the  baro;ain 
was  denied,  and  the  vendee's  damages  Ihnited  to  his  deposit.*  ^ 
This  would,  of  course,  if  the  vendee  made  no  advance,  reduce 
his  recovery,  independent  of  actual  expenses,  to  a  merely 
nominal  sum.  That  case  seems  to  have  gone  on  the  ground 
that  "contracts  of  this  description  are  on  the  condition  fre- 
quently expressed,  but  always  implied,  that  the  vendor  has  a 
good  title."  "^  And  as  to  such  cases  the  principle  seems  well  set- 
tled ;  so  in  a  more  recent  case,  where  tlie  vendor,  acting  in  good 

fliitli,  contracted  with  the  plaintift'  to  sell  certain  real  es- 
[184]  tate,  and  proved  unable  to  give  a  good  title,  the  plaintiff 

was  permitted  to  recover  only  his  expenses  for  investi- 
gating the  title,^  and  not  the  advance  at  wdiich  he  could  have 
sold  the  property,  Parke,  J.,  saying,  "  In  the  absence  of  any  ex- 
press stipulation  the  parties  must  be  considered  as  content  that 
the  damage  in  the  event  of  the  title  proving  defective,  shall 
be  measured  in  the  ordinary  way ;  and  that  excludes  the  claim 
of  damages  on  account  of  the  supposed  goodness  of  the  bar- 

"  J.  4 

gam.    T 

And  these  cases  have  recently  been  reviewed  and  adhered  to. 
So,  where  the  plaintiff  entered  into  possession  of  premises  as 
tenant  for  two  years,  wdtli  liberty  to  make  improvements 
(which  he  did),  and  to  purchase  at  the  end  of  the  time,  the 
vendor  having  acted  in  good  faith,  but  proving  unable  to  com- 
plete, the  plaintiff  claimed  to  recover  for  the  improvements  he 
had  made  ;  but  it  was  held,  he  was  only  entitled  to  the  value  of 
the  lease,  and  not  of  the  improvements.^ 

*  Flureau  v.  Thornhill,  2  W.  Blackstone,  |  Worthingtou  v.  Warrington,  8  Man.  Gr. 
1078.  &  S.  134. 

t  Walker  v.  Moore,  10  B.  &  Cres.  416. 


1  Sikes  V.  Wild,  4  B.  and  S.  421  ;  32  L.  J.  (N.  S.)  Q.  B.  375  ;  5  L.  T.  (N.  S.)  422,  affirming 
S.  C.  1  B.  and  S.  587. 

2  "  That  is  the  true  and  only  principle  npon  which  Flurean  v.  Thornhill  can  be  supported," 
say  the  English  Court  of  Common  Pleas  after  citing  the  above  language,  "  namely,  that  the  par- 
ties have  tacitly  agreed  that  this  should  be  understood  as  a  term  of  the  bargain  between  them." 
Lock  V.  Furze,  1  L.  K.  (C.  P.)  453. 

3  See  as  to  the  items  of  expense  allowed  in  such  a  case,  Hodges  v.  Litchfield,  1  Bing.  N. 
C.  492.  The  expenses  of  a  previous  suit  between  the  parties,  in  which  the  vendor  was 
defeated,  beyond  the  costs  taxed  in  that  suit,  cannot  be  I'ccovered.  Ibid.  Wlicre  the  vendee 
declares  on  the  original  contract,  and  lays  the  expenses  incurred  as  special  damages,  he  will  be 
entitled  to  recover  them.  Richards  v.  Barton,  1  Esp.  N.  P.  268.  But  he  cannot  recover  them 
under  a  count  for  money  paid.     Camfield  v.  Gilbert,  4  Esp.  N.  P.  221. 

*  Nomiiial  damages  only  can  be  recovered  for  the  vendor's  breach  of  a  contract  to  convey 
land  made  in  good  faith,  where  such  breach  is  occasioned  simply  by  his  honest  inability  to 
make  a  good  title.     Conger  v.  Weaver,  20  N.  Y.  140. 


CH.    VI.]  CONTRACTS    FOR   REAL   ESTATE.  197 

Rule  where  Vendor  has  no  Title.  —  But  where  the  vendor 
has  no  title  whatever,  and  holds  himself  out  as  the  proprietor 
when  he  is  not,  the  rule  is  otherwise.  So,  where  the  vendor 
had  no  title  whatever,  although  acting  bond  fide,  the  Court  of 
King's  Bench  permitted  substantial  damages  to  be  given.* 
And  again,  where  a  party  agreed  to  grant  a  lease,  with  full 
knowledge  that  he  had  no  title,  the  plaintiff  was  allowed  dam- 
ages for  the  loss  of  his  bargain.! 

It  has  been  supposed  that  the  plaintiff  in  an  action  against 
the  vendor  in  detiiult  might  include  the  costs  of  a  suit  in  equity, 
to  compel  specific  performance,  the  bill  having  been  dismissed 
without  costs,  as  is  the  practice  of  the  English  Court  of  Chan- 
cery when  the  defendant  cannot  make  a  title.  But  the  Court 
of  Queen's  Bench  has  recently  held  that  these  damages  are  too 
remote.$ 

The  same  distinction,  growing  out  of  the  motives  influencing 
the  vendor,  has  been  taken  in  this  country.  So  in  a  case  in 
New  York,  §  in  which  the  covenantor  had  acted  in  good 
faith,  and  refused  to  convey  because  his  title  had  in  part  [185] 
failed,  the  plaintiff  insisted  that  he  was  entitled  to  re- 
cover the  increased  value  of  the  land  on  the  dav  when  the  deed 
was  due,  beyond  the  contract  price.  It  was  held,  that  where 
the  vendor  acted  in  had  faith,  the  plaintiff  would  be  entitled  to 
recover,  by  way  of  damages,  the  difference  between  the  con- 
tract price  and  the  enhanced  value  when  the  conveyance  should 
have  been  made  ;  ^  but  that  in  a  case  of  good  faith,  the  contract 
price  would  be  considered  conclusive,  and  the  plaintiff  having 
paid  nothing  could  recover  nothing.''^ 

In  this  decision  the  court  proceeded  on  the  analogy  of  evic- 
tion, where  the  plaintiff  is,  as  we  have  seen,  limited  to  the  con- 

*  Hopkins  v.  Grazebrook,  6  Barn.  &  Cres.  149,  where  damages  for  loss  of  bargain  were 
31.  refused. 

t  Robinson  v.  Harman,  1  Exch.  R.  850.  %  Maiden  v.  Tyson,  11  Q.  B.  292.  See 
See,  to  same  point,  Bitner  v.  Broucrb,  11  Penn.  Jones  v.  Dyke,  Appendix  to  Siigden  on  Vend- 
St.  R.  127.     Sec  Tyrer  v.  Iving,  2"Car.  &  Kir.     ors,  1078. 

§  Baldwin  v.  Munn,  2  Wend.  399. 


1  So  in  Pennsylvania,  as  against  a  fraudulent  vendor  of  real  estate,  damages  may  be  given 
for  all  the  expense  in  which  his  fraud  involved  the  plaintiff.  McNair  i;.  Compton,  35  Penn. 
St.  23. 

^  So  where  the  vendor  of  real  estate  refused  to  convey,  either  because  he  had  made  the 
contract  to  sell  knowing  he  had  no  means  of  making  a  tide,  or  because  the  land  was  greatly 
enhanced  in  value,  the  New  York  Supreme  Court  held  that  the  measure  of  damages  was  the 
value  of  the  land  at  the  time  of  the  breach,  with  interest,  and  on  reconsideration  reaffirmed  this 
ruhng.  Brinckcrhoff  y.  Phelps,  24  Barb.  (N.  Y.)  100  ;  and  43  Barb.  469.  The  vcudor^s  want 
of  good  faith  was  held  to  distinguish  this  case  from  that  of  Conger  v.  Weaver,  20  N.  Y.  140  ; 
ante,  184,  note  4.  In  a  peculiar  case  in  Tennessee,  where  one  got  up  void  proceedmgs  m  par- 
tition under  which  a  sale  was  had,  it  was  held  that  the  purchaser's  measure  of  damages  against 
him,  whetlier  tlie  intention  had  been  fraudulent  or  not,  was  in  either  case  the  consideration 
money  and  interest.     Key  v.  Key,  3  Head  (Tenn.),  448. 


198  REAL    COVENANTS.  [CH.    VI. 

sideration  paid,  and  disregarded  the  authorities  in  regard  to 
chattels,  where  it  is  well  settled,  as  we  shall  see,  that  the  plain- 
tiff is  entitled  to  recover  the  enhanced  value  without  being 
driven  to  any  investigation  into  the  good  or  bad  faith  of  the 
vendor.* 

And  to  this  the  courts  of  New  York  have  adhered.  So  in  a 
recent  case  the  defendant  in  consequence  of  a  defect  in  his  title 
failed  to  comply  with  his  contract  to  convey  certain  property, 
the  plaintiff  who  was  to  pay  on  the  delivery  of  the  deed  had 
advanced  nothing,  but  he  had  removed  to  the  property  and  done 
some  work  on  it ;  and  in  the  declaration  he  claimed  to  recover 
his  expenses  of  removing  and  also  his  labor.  No  bad  faith  was 
alleged  or  pretended.  The  judge,  who  tried  the  cause,  told  the 
jury  that  if  the  defendant  tvW fully  and  designedhj  neglected  to 
convey,  the  plaintiff  was  entitled  to  recover  all  the  damages  which 
he  had  sustained  by  the  breach  of  his  contract ;  but  that  unless 
the  non  performance  was  willful  and  intentional,  the  plaintiff  was 
entitled  to  nominal  damages  only ;  that  if  the  omission  to  convey 
was  accidental  or  inadvertent,  and  the  defendant  had  fairly 
tendered  him  all  the  title  he  could  make,  the  plaintiff 
[186]  could  not  recover  any  of  the  special  damages.  A  ver- 
dict was  found  for  nominal  damages  ;  and  on  exceptions, 
this  was  held  right,  the  court  saying,  "  That  on  an  executory 
contract  for  the  sale  of  lands  which  the  vendor  believes  to  be 
his  own,  and  where  there  is  no  fraud  on  his  part,  if  the  sale  falls 
through  in  consequence  of  a  defect  of  title,  the  measure  of 
damages  is  substantially  the  same  as  it  is  in  the  case  of  an  exe- 
cuted sale,"  or  on  the  covenants  for  seisin  and  for  quiet  enjoy- 
ment.t  ^ 

*  The  languajje  of  the  court  was  as  follows  :  should  have  been  made."  We  shall,  however, 
"  If  the  vendor  acts  in  bad  foith,  and  rcfuees  to  hereafter,  when  we  come  to  the  subject  of  con- 
convey  because  the  property  has  increased  in  tracts  generally,  consider  the  propriety  of  this 
value,  and  with  a  view  of  putting  the  enhanced  suggestion,  that  in  an  action  on  contract  dam- 
value  in  his  own  pocket,  it  becomes  a  case  of  ages  will  vary  according  to  the  intention  of 
fraud,  and  the  plaintiff  would  clearly  be  en-  the  party. 

titled  either  to  compel  a  specific  performance  t  Peters  v.  M'Keon,  4  Denio,  546.     See  the 

in  equity,  or  to  recover  by  way  of  damages  authorities  collected  and  referred  to  in  a  re- 

the  difference  between  the  contract  price  and  cent  case  :  Fletcher  v.  Button,  6  Barb.  S.  C. 

the    enhanced    value  when    the    conveyance  R.  646. 

1  See  Sweem  v.  Steele,  5  Iowa,  352.  "  If  the  person  is  honest,"  say  the  court,  "  and  is 
prevented  from  making  the  conveyance  by  unforeseen  causes,  and  which  he  could  not  control, 
the  plaintiff  should  recover  only  nominal  damages.  If  he  has  paid  the  price  or  any  part 
thereof,  then  of  course  in  such  a  case  he  should  recover  that  sum  with  interest.  But  if  the 
person  selling  is  in  fault,  and  either  did  know  or  should  have  known  that  he  could  not  comply 
with  his  undertaking,  or,  having  the  title,  refuses  to  convey,  or  having  the  title  at  the  time  of 
the  agreement  afterwards  disables  himself  from  completing  it  by  a  sale  to  a  third  jierson,  or 
at  the  time  of  the  agreement  knew  he  had  no  title,  —  in  these,  and  all  cases  where  the  inability 
arises  from  fraud  in  the  covenantor,  the  purchaser  should  recover  substantial  damages,  in- 
cluding compensation  for  any  actual  loss,  as  by  the  increased  value  of  the  land  to  the  time 
when  the  contract  should  have  been  executed."     See  also,  Foley  v.  McKegan,  4  Iowa,  I. 


CH.    VI.]  CONTRACTS    FOR   REAL   ESTATE.  199 

Rule  in  the  Supreme  Court  of  the  United  States. —  But  the 
Supreme  Court  of  the  United  States  have  disregarded  the  anal- 
ogies deducible  from  the  actions  on  real  covenants,  and  have 
resorted  to  those  to  be  derived  from  executory  contracts  for  the 
sale  of  chattels.  In  a  case  somewhat  similar  to  the  last,  the  fol- 
lowing language  was  held  by  that  high  tribunal,  —  * 

"  The  rule  is  settled  in  this  court,  that  in  an  action  by  the  vendee  for  a 
breach  of  contract  on  the  i>art  of  the  vendor  for  not  delivering  the  article,  the 
measure  of  damages  is  its  price  at  the  time  of  its  breach.  The  price  being 
settled  by  the  contract,  which  is  generally  the  case,  makes  no  difference,  nor 
ought  it  to  make  any  ;  otherwise  the  vendor,  if  the  article  have  risen  in  value, 
would  always  have  it  in  his  power  to  discharge  himself  from  his  contract,  and 
put  the  enhanced  value  in  his  own  pocket ;  nor  can  it  make  any  ditFerence  in 
principle  whether  the  contract  be  for  real  or  personal  property  ;  if  the  lauds, 
as  is  the  case  here,  have  not  been  improved  or  built  on.  In  both  cases  the 
vendee  is  entitled  to  have  the  thing  agreed  for  at  the  contract  price,  and  to  sell 
it  himself  at  its  increased  value.  If  it  be  withheld,  the  owner  ought  to  make 
good  to  him  the  difference.     This  is  not  an  action  for  eviction."  f  ^ 

Rule  in  Cases  of  Fraud.  —  In  Virginia,  in  general  upon  the 
breach  of  an  executory  contract  to  convey  land,  the  vendee  is 
not  entitled  to  more  damages  than  the  purchase  money  actu- 
ally paid  and  interest  thereon.t  But  this  rule  will  not  be 
applied  when  the  fraudulent  conduct  of  the  vendor  makes  it 
unreasonable  to  limit  the  vendee  to  that  measure  of  damages. 
If,  for  example,  a  vendor  who  has  the  title  in  him  at  the 
time  of  sale,  shall  after  his  contract  disable  himself  [187] 
from  performing  it  by  conveying  the  land  to  another,  he 
will  be  held  liable  for  the  value  at  the  time  of  the  breach,  and 
interest  may  be  allowed  on  such  value  for  that  time.§ 

In  Kentucky  it  is  held  by  the  Court  of  Appeals,  that  on  a 
covenant  to  convey,  where  the  vendor  is  wiilioid  fraud  incapable 

*  Hopkins  v.  Lee,  6  Wheat.  109,  118.  case  from  the  ordinary  case  of  a  mere  failure 

t  In  Baldwin  v.  Munn,  2   Wend.  399,  407,  to  convey  where  the  consideration  money  has 

speaking  of  this  case,  Suthei-hmd,  J.,  said,  "  It  not  been  paid." 

will  be  jjerceived  that  this  was  substantially  |  Thompson's  Ex'rs  v.  Guthrie's  Adm'rs,  9 

a  case  of  exchange  of  lands.     Very  different  Leigh,  101. 

considerations  may  be  ajjplicable   to   such   a  §  VVilson  u.  Spencer,  11  Leigh,  261. 

1  It  sometimes  occurs  in  sales  of  land  that  the  quality  of  the  land  actually  conveyed  is  in- 
ferior to  what  it  was  represented  to  be.  In  such  case  in  Iowa  the  same  rule  is  applied  as  in 
the  case  of  sales  of  personal  property,  and  the  measure  of  the  vendee's  damages  is  the  differ- 
ence between  the  actual  value  of  the  land  and  what  it  wovild  have  been  had  the  representations 
been  true.  Likes  v.  Baer,  8  Iowa,  368  ;  Gates  v.  Reynolds,  13  Iowa,  1.  And  where  the  land 
is  not  in  (luantity  what  it  was  represented  to  be,  the  measure  of  damages  is  determined  by  the 
average  value  of  the  tract.  Thus  where  A  sold  B  several  parcels  of  land  for  an  aggregate 
sum,  and  represented  that  one  of  them  contained  two  hundred  acres,  which  representation  was 
fraudulent,  the  rule  of  damages  was  found  by  multiplying  the  average  value  per  acre  of  the 
parcel  in  question  by  the  number  of  acres  in  the  deticiency.     Thompson  v.  Bell,  37  Ala.  438. 


200  REAL    COVENANTS.  [CH.    Yl. 

of  making  a  title,  the  rule  of  damages  is  the  purchase  money, 
with  interest  from  the  time  it  was  paid  ;  and  the  court  approved 
the  English  case  of  Flureau  v.  Thornhill*  But  in  the  same 
State,  in  a  case  where  the  vendor  fraudulently  sold  land,  to 
which  he  knew  he  had  neither  a  good  title  nor  claim,  it  was  held 
by  the  Court  of  Appeals  in  cqidifj,  that  the  value  of  the  land 
should  be  fixed  at  what  it  was  worth  at  the  time  of  impaneling 
the  jnry.f 

And  again,  in  the  same  State,  in  an  action  on  a  covenant  to 
convey  land,  the  jury  were  told  that  if  they  found  for  the  plain- 
tiff, they  must  give  the  value  of  the  land  at  the  time  it  should 
have  been  conveyed,  and  interest.  But,  on  review,  this  was  held 
erroneous ;  and  the  Court  of  Appeals  said,  "  When  there  is  a 
fraudulent  refusal  to  convey,  less  damages  than  the  value  of  the 
land,  at  the  time  the  conveyance  ought  to  have  been  made,  should 
never  be  given;  and  the  jury  would,  no  doubt,  be  at  liberty  to 
find  damages  equivalent  to  the  value  and  interest  down  to  the 
assessment.  But  in  such  a  case,  the  giving  or  withholding  inter- 
est, is  a  matter  in  the  discretion  of  the  jury  ;  and  consequently, 
instead  of  instructing  the  jury  as  a  matter  of  law  to  give  inter- 
est, the  court  should  have  left  them  to  exercise  their  discretion 
free  from  any  intimation  of  opinion."  $^ 

In  these  cases  it  will  be  noticed,  that  the  courts  have  recog- 
nized a  difference  in  the  rule  of  damages,  growing  out  of  the 
motives  of  the  party  in  default.  This  distinction  has  crept  in 
from  the  civil  law  without,  as  I  believe,  sufficient  consideration 
being  given  to  the  point.  There  may  be  room  for  the  suggestion 
in  equity,  on  a  bill  filed  for  performance  or  for  general  relief. 
But  when  I  come  to  consider  the  rule  of  damages  on  contracts 
generally,  I  think  I  shall  be  able  to  prove,  that  at  law 
[188]  the  motive  of  the  party  can  never  be  taken  into  consider- 
ation in  an  action  of  contract ;  that  the  intent  cannot  be 
averred  in  pleading  except  as  matter  of  form,  nor  evidence  given 
in  regard  to  it ;  and  that  consequently  the  damages  cannot  be 
made  to  depend  upon  it.§^ 

*  2  W.  Black.   1078 ;  Allen  v.  Anderson,  2  %  Handley  v.  Chambers,    1    Littell's   Eep. 

Bibb,  415.  358. 

t  M'Connell  v.  Dunlop,  Hiirdin,  41.     And  §  Newsom  v.  Harris,  Dudley's  Georgia  Ee- 

tlie   principle   was   recognized   in   Patrick  v.  ports,  August,  1832,  180.     In  an  action  on  a 

Marshall,  2  Bibb,  40 ;  and  Fisher's  Heirs  v.  bond    to   make   titles   to   land,  a  breach  Avas 

Kay,  2  Bibb,  434.     These  are  all  in  equitij,  proved,  and  the  question  was  as  to  the  nicas- 

however.  ure   of    damages.      The  plaintiff   gave   three 


1  This  seems  to  be  nearly  the  rule  in  Maryland.  See  Marshall  v.  Haney,  9  Md.  194  ;  S.  C. 
4  Ibid.  498. 

■■^  But  the  exception  to  the  general  rule,  in  the  case  of  contracts  for  the  sale  of  real  estate, 
seems  now  too  well  settled  to  be  shaken.  Ante,  186;  post,  209.  Lawrence  v.  Chase,  54  Me. 
196. 


CH.    YI.]  CONTRACTS   FOR    REAL   ESTATE.  201 

Value  aviien  Eecoverable  iioav  Determined.  —  In  Maine,  in  an 
action  by  the  vendee  on  an  agreement  to  convey  land,  it  has 
been  held  that  the  jnry  are  not  confined  to  the  value  of  the  land 
for  agricultural  or  pastoral  or  other  useful  purposes,  nor  to  be 
controlled  by  the  probability  that  the  land  would  be  in  demand 
for  building  lots ;  but  that  they  might  take  into  consideration 
ihc  marketable  value  also  at  the  time ;  and  that  their  result  should 
be  arrived  at  by  taking  into  view  all  the  objects  for  which  the 
land  is  desirable* 

In  the  same  State,  in  an  action  brought  by  the  vendee  of  land 
who  had  paid  the  purchase  money,  and  received  a  bond  condi- 
tioned to  execute  a  deed  of  the  premises  at  a  reasonable  time 
after  request,  the  jury  were  instructed  at  the  trial, — 

"  That  the  rights  of  the  parties  must  be  determined  by  the  state  of  the  facts 
at  the  time  the  action  was  brought,  and  that  all  subsequent  proceedings  might 
be  laid  out  of  the  case  ;  that  the  obligation  of  the  defendants  required  them  to 
convey  the  title  to  the  land  disputed ;  that  if  they  had  not  complied  with  it,  the 
injury  to  the  plaintiff  was  the  loss  of  the  title  to  the  land ;  and  that  the  proper 
and  legal  compensation  was  the  value  of  the  land  at  the  time  of  a  demand 
made  and  a  refusal  or  neglect  to  jjerform  ;  and  that  in  finding  that  value  they 
ought  to  take  into  consideration  the  price  agreed  by  the  parties,  and  such  other 
evidence  as  there  was  in  the  case." 

Under  this  charge  the  jury  found  a  verdict  for  the  considera- 
tion money  and  interest.  A  motion  was  made  to  set  it  aside  for 
misdirection ;  but  the  court  said,  — 

"  "When  a  party  has  a  covenant  for  a  title,  he  may  in  a  proper  case,  if  the 
other  party  can  perform,  obtain  a  specific  performance  in  chancery.  If 
the  other  jiarty  cannot  perform,  he  must  be  content  with  his  remedy  L^  J 
at  law.  If  he  elect  to  proceed  at  law,  and  recover  damages,  that  is  a 
satisfaction  of  the  contract,  and  he  cannot  afterwards  in  chancery  obtain  the 
title.  He  has  an  election,  and  may  proceed  at  law  ;  and  when  he  does,  he  is 
entitled  to  an  indemnity,  and  no  more.  By  a  performance  he  would  have 
recovered  the  land,  and  such  recovery,  that  is,  if  he  obtain  the  value  at  the 
time,  is  the  exact  measure  of  his  loss.  As  the  plaintiff  had  performed  on 
his  part,  he  was  entitled  to  the  land,  or  to  its  value  ;  and  the  instructions  were 
correct."  f 

Rule  where  Title  is  to  be  Made  by  Third  Party.  —  In 
Iowa,  in  an  action  on  a  title  bond,  or  bond  conditioned  to  create 

hundred  dollars  for  the  land,  and  the  defend-  measure  of  damages.     The  court  adopted  the 

ant  sold  it  for  six  hundred  dollars.     The  vcr-  hitter  rule,  and  set  aside  the  verdict. 

diet  was  Ibr  the  price  paid  for  the  land  by  *  Warren  v.  Wheeler,  21  Maine,  484.     The 

plaintitl' ;     and     the     question     argued    was,  action  was  assiimpsit,  being  on  an  unsealed 

whether  the  price  paid  with  interest  or   the  agreement. 

value  at  the  time  of  the  breach,  was  the  true  t  Hill  v.  Hobart,  16  Maine,  164. 


202  REAL    COVENANTS.  [cil.    VI. 

a  good  title  of  lands,  the  measure  of  damages  is  the  considera- 
tion money  and  interest  *  But  where  a  covenant  is  given  that  a 
third  person  shall  make  a  title,  the  measure  of  damages  is  not 
the  price  or  value  of  the  land,  but  the  value  of  the  title  at  the 
time  it  was  to  have  been  made.f  ^ 

Payment  in  Advance.  —  It  has  been  said  in  Vermont,  "  that 
when  the  entire  consideration  for  the  conveyance  has  actually 
been  received  by  the  party  who  was  to  give  the  deed,  the  value 
of  the  land  at  the  time  it  should  have  been  conveyed,  with  inter- 
est, is  obviously  the  proper  rule  ;^  and  so  where  a  tender  of  per- 
sonal chattels  has  been  duly  made,  according  to  previous  con- 
tract, in  payment  for  the  land  ;  because  by  our  law  such  a  tender 
passes  the  property  in  the  chattels  over,  against  the  will  of  the 
party  to  whom  they  are  tendered,  so  that  in  fact  and  in  law,  he 
has  the  consideration  stipulated  for." 

Payment  in  Services.  —  But  the  rule  was  held  different 
wdiere  the  land  was  to  be  paid  for  in  work  and  labor,  and  the 
plaintiff's  services  had  been  performed  only  in  part,  and  as  to 
the  remainder,  had  been  tendered  but  refused.  Here  it  was 
held  "  that  the  recovery  should  be  restricted  to  the  extent  of  the 
plaintiff's  actual  damage ;  that  the  value  of  the  land  was  impor- 
tant in  estimating  the  damage,  as  far  as  the  land  had  been  paid 
for,  and  the  stipulated  services  performed  ;  but  for  the  residue, 
it  was  an  open  question  as  to  what  the  party  had  lost  by  being 
prevented  from  completing  the  execution  of  his  contract."  J 

EuLE  where    Land   has   Declined  in  Value.  —  But   how  will 

*  Stewart  v.  Noble,  1  (Greene)  Iowa,  26.  Dorsej,  1    Gill  &  J.  440;  Gibbs  v.  Jemison, 

t  Pinkston  v.  Huie,   9  Ala.  252.     Dyer  v.     12  Ala.  820. 

J  Boai-dman  v.  Keelcr,  21  Vt.  77. 

1  So  in  Illinois,  where  one  agreed  to  procure  a  deed  of  land  fi'om  another  who  refused  to 
convey,  the  naeasure  of  damages  was  held  to  be  the  value  of  the  land  at  the  time  it  ought  to 
have  been  conveyed.     Gale  v.  Dean,  20  HI.  320. 

So  in  Massachusetts,  where  a  land  agent  of  the  Commonwealth  who,  as  such,  had  sold  its 
bond  for  the  conveyance  of  land,  wrongfully  caused  the  title  to  be  transferred  to  other  parties 
than  the  vendee,  the  assignee  of  the  vendee  (claiming  through  various  mesne  assignments) 
was  held  entitled  to  recover  the  value  of  the  land  at  the  time  of  the  wrongful  transfer.  Pin- 
gree  v.  Coffin,  12  Gray,  288. 

'■^  So  in  Pennsylvania,  in  an  action  on  an  executory  contract  for  a  refusal  to  convey  land 
after  payment  of  the  purchase  money,  the  measure  of  damages  is  the  value  of  the  land  at  the 
time  when  it  should  have  been  conveyed.     Cox  v.  Henry,  32  Penn.  State  R.  18. 

And  where  the  law  permits  an  action  for  breach  of  agreement  on  the  part  of  the  government 
to  make  a  grant  of  land,  it  seems  the  rule  of  damages  is  the  same.  An  army  officer  employed 
in  the  civil  service  of  the  government  of  Australia,  received  from  the  governor  of  that  colony 
a  promise  of  a  grant  of  land  on  condition  that  he  settled  in  the  colony.  His  claim  having 
been  defined,  but  the  grant  not  made,  he  took  proceedings  under  a  local  act  against  the  gov- 
ernor of  the  colony  to  obtain  compensation.  It  was  held  tliat  he  was  entitled  to  compensation 
measured  by  the  value  of  the  specific  land  at  the  time  of  bringing  the  suit.  Robertson  v, 
Dumaresq,  2  Moore  P.  C.  C.  (N.  S.)  66  ;  13  Weekly  R.  280. 


en.    YI.]  CONTRACTS    FOR   REAL   ESTATE.  203 

it  be  when  the  land  has  fallen  in  value  ?  In  North  Carolina 
the  plaintiff  purchased  a  lot  of  land  for  $8,000,  and  paid 
the  greater  part  of  the  purchase  money.  The  plaintiff  [190] 
was  let  into  possession,  and  the  defendant  executed  a 
bond  in  the  penalty  of  $10,000,  conditioned  to  convey  upon  the 
payment  of  the  balance  of  the  purchase  money.  The  plaintiff 
was  evicted  by  the  judgment  creditors  of  the  defendant,  and  the 
property  sold  by  the  plaintiff  for  $2,500,  which  was  admitted  to 
be  the  real  value  of  the  property  at  the  time.  Here  the  court 
refused  to  allow  the  plaintiff  to  recover  the  amount  of  the  pur- 
chase money,  as  if  he  had  repudiated  the  contract  and  sued  for 
money  had  and  received.  "  Here  the  plaintiff  seeks  to  recover 
compensation  ;  what  sum  will  put  him  in  as  good  a  condition  as 
if  the  contract  had  been  performed  ?  In  this  case  he  would  have 
got  property  which  is  worth  $2,500,  but  he  would  have  been 
forced  to  pay  the  balance  of  the  purchase  money  and  interest. 
He  has  not  j)aid  this  latter  amount,  and  his  damage  is  the  differ- 
ence between  that  sum  and  the  value  of  the  property,  which  by 
the  case  agreed  is  $207.80 ;  "  and  to  that  sum  the  redress  was 
limited."*  ^ 

Actions  by  Vendor.  —  We  come  now  to  actions  against  the 
purchaser.  In  England,  when  the  vendee  refuses  to  perform, 
the  measure  of  damages  is  held  to  be  the  difference  between  the 
price  fixed  in  the  contract,  and  the  value  at  the  time  fixed  on  for 
delivering  the  deed.^  It  follows  that  if  the  property  does  not 
fiill  in  value,  the  vendor  can  recover  nothing.  So,  where  the 
plaintiff  and  defendants  had  agreed  that  the  plaintiff  should  sell 
and  the  defendants  should  buy  a  piece  of  land,  the  defendants 
refused  to  pay  the  price.  The  plaintiff  insisted  that  the  amount 
of  the  purchase  money  agreed  on,  with  interest,  was  the  proper 
measure  of  damages.  But  the  judge  who  tried  the  cause,  Rolfe, 
B.,  held  that  the  plaintiff  was  entitled  to  such  damages  only  as 
had  resulted  from  the  defendant's  breach  of  the  contract;  and 

*  Nichols  V.  Freeman,  1 1  Iredell,  99. 


1  If  the  vendor  nnder  a  parol  agi-cement  to  sell  land,  refuse  to  fulfill  his  contract,  in  a  case 
where  the  vendee  has  had  possession,  the  vendor  should  be  allowed  interest  by  way  of  rent, 
on  the  price  agreed  on  for  the  land,  and  also  for  waste ;  and  he  should  be  charged  with  the 
value  of  improvements.     Bellamy  v.  Ragsdalc,  14  B.  Monr.  (Ky.)  364. 

Where  the  defendant,  holding  a  bond  from  the  owner  of  a  land  certificate,  had  covenanted  to 
"  locate  "  tiie  same  so  as  to  cover  certain  land,  and  convey  the  tract  thus  ac({uire(l  to  the  jilain- 
tiff,  but  was  compelled  to  break  his  covenant  through  the  default  of  the  obligor,  it  was  hchl  in 
Texas,  in  an  action  hy  the  vendee  for  breach  of  this  covenant,  that  the  fiict  that  the  plaintiff 
had  "  located  "  another  certificate  on  the  same  land,  would  go  in  mitigation  of  the  damages. 
King  V.  Gray,  17  Tex.  62. 

-  This  rule  is  adopted  in  Massachusetts.     Old  Colony  Railroad  v.  Evans,  6  Gray,  25. 


204  REAL    COVENANTS.  [CH.    \^. 

on  argument  of  a  rale  to  show  cause  why  the  damage  should  not 
be  increased  to  the  amount  of  the  purchase  money,  it  was  said, 
"  The  question  is  how  much  worse  is  the  plaintiff  by  the  diminu- 
tion in  the  value  of  the  land  or  the  loss  of  the  purchase  mone}^, 
in  consequence  of  the  non-performance  of  the  contract.     It  is 

clear  that  he  cannot  have  the  land  and  its  value  too."  * 
[191]  This  question,  although  raised,  does  not  appear  to 
have  been  absolutely  decided  in  this  country.  In  New 
York,  in  an  action  on  an  agreement  of  this  nature,  the  plaintiff, 
the  vendor,  was  allowed  to  recover  the  agreed  price  of  the  land, 
with  interest.  But  although  the  case  went  up  on  other  points, 
the  question  was  not  argued.f  ^ 

In  Maine,  where  suit  was  brought  for  the  price  of  a  pew,  a 
deed  having  been  tendered  and  refused,  it  was  said,  though  the 
point  does  not  appear  to  have  been  discussed  by  counsel,  that 
"the  measure  of  damages  was,  as  the  judge  instructed  the  jury, 
the  price  agreed  to  be  paid  for  the  j)ew  by  the  defendant,  who 
will  be  entitled  to  the  deed  whenever  he  chooses  to  accept  it."  t 

This  decision  has  been  cited  with  approbation  in  New  York, 
in  a  case  in  which  the  folio  wins;  lano-uao-e  was  held :  — 

"  Suppose  in  the  case  of  a  covenant  to  convey  a  farm  for  a  specified  sum,  and 
a  deed  tendered  but  refused,  and  tlie  vendor  sells  to  another,  shall  he  yet  recover 
the  vrhole  price  of  the  original  vendee  ?  I  admit  that  in  some  cases,  where 
property  is  so  tendered,  and  the  tender  is  not  withdrawn,  the  price  may  be  re- 
covered ;  but  this  is  on  the  ground  that  the  thing  sold  has  an  independent  exist- 
ence, and  the  corpus  not  being  perishable,  and  having  legally  passed  by  the  tender 
and  subsequent  recovery,  may  still  be  actually  delivered  over  whenever  the  ven- 
dee shall  demand  it."  § 

On  the  other  hand,  it  has  been  said  in  Vermont,  although  the 
precise  point  was  not  before  the  court,  "  Where  a  party  agrees 
to  make  a  purchase  of  property,  and  then  refuses  to  proceed  in 
the  bargain  and  take  the  property,  the  loss  of  the  bargain  con- 
stitutes the  proper  rule  of  damages  ;  because  the  property  never 
passed."  || 

*  Laird  v.  Pim,  7   Mccs.  &  Wels.  474,  per  recover  the  contract  price,  bnt  only  as  much 

Parke,  B.     But  see  Hawkins  v.  Kemp,  8  East,  as   he   had   actually  lost   by  the   defendant's 

410,  and  Cliitty  PI.  vol.  ii.  p.  290.  neglect ;   the   court   sayinj;,    "  A   tender   and 

t  Franchot  v.  Leach,  5  Cowcn,  506.  ottbr  to  perform  is  equivalent  to  performance 

J  AJna  v.  Pluramer,  4  Greenleaf,  258.  for  the  purpose  of  sustaining  an  action.     It  is 

§  Shannon   v.    Comstock,    21    Wend.    457.  quasi   performance,    and    does   not  refjulate   tJw 

But  in  this   very  case,  it  was  held,  where  a  atnount  of  damaqes."      See    also,  Hecksher  v. 

plaintitf  had  agreed  to  take  certain  freight  for  McCrca,   24    Wend.   304  ;    and    Costigan    v. 

a  stipulated  sum,  and  averred  a  readiness  and  Mohawk  &  Hudson  R.  Ii.  2  Denio,  610. 

offer  to  perform  on  his  part,  that  he  could  not  ||  Sawyer  v.  M'Intyre,  18  Verm.  27. 

1  This  was  reluctantly  held  to  he  the  settled  rule,  on  a  review  of  the  cases,  in  Richards  v. 
Edick,  17  Barb.  (N.  Y.)  260.  The  rule  is  the  same  in  Pennsylvania.  Tripp  v.  Bishop,  56 
Penn.  424. 


en.    VI.]  CONTRACTS   FOR   REAL   ESTATE.  205 

The  question  is  evidently  not  free  from  perplexity :  on  the 
one  hand  it  is  said  that  the  vendor  by  making  a  tender  has  per- 
formed his  contract  so  far  as  it  lies  in  his  power,  that  his 
right  is  complete  to  the  performance  of  the  contract  by  [192] 
the  vendee,  and  that  this  performance  is  the  payment  of 
the  purchase  money.  But  on  the  other  side,  it  is  replied  with 
great  force,  that  the  recovery  cannot  pass  the  fee  of  the  land, 
that  the  legal  seisin  still  remains  as  at  first,  that  the  vendor  has 
not  parted  with  his  property,  that  if  the  land  has  not  fallen  in 
price,  he  has  lost  nothing,  that  the  common  law  gives  damages 
for  none  but  actual  loss  ;  and  it  is  insisted  that  the  true  measure 
of  damages  in  such  case,  is  the  difference  between  the  stipulated 
price  and  the  actual  value  at  the  time  of  breach,^  or  perhaps  at 
the  time  of  trial.^  I  shall  have  occasion  again  to  consider  this 
question,  when  we  come  to  the  subject  of  the  sale  of  chattels.* 

In  contracts  of  purchase  of  this  description,  a  clause  is  often 
inserted,  for  a  deposit  and  a  forfeiture  of  that  deposit  if  the 
purchaser  do  not  fully  carry  out  his  agreement.  In  a  case  of 
this  kind,  where  it  was  declared  that  the  deposit  was  to  be  for- 
feited as  liquidated  damages,  it  was  still  held  that  the  plaintiff 
could  go  for  damages  at  large,  and  was  not  confined  to  the 
deposit.! 

Interest.  —  As  to  the  interest,  it  has  been  held  that  where 
the  vendee  in  a  contract  for  the  purchase  of  real  estate,  takes 
possession  of  the  property  as  owner,  without  having  paid  the 

*  In   the  case  of  Williams  v.  Field,  vendoi-  due  bias  to  the  technical  and  strict  application 

V.  vendee,  MS.,  in  the  Superior  Court  of  New  of  the  general  principle.     And  see,  in  Eng- 

York,  July,   1846,   this   precise  question   was  land,   Goodisson   v.  Nunn,  4  T.  li.  761,  aiid 

raised    and    much    examined,    and    the   court  Glazebrook  v.  Woodrow,  8   T.    II.  .366,  where 

arrived  at  a  conclusion  adverse  to  the  English  it  certainly  seems   to   be  assumed,  that  if  a 

rule.     I  should  have  entertained  little  doubt  proper  tender  be  made  of  the  deed  the  consid- 

that  the  English  rule  were  correct,  had  it  not  eration  money  will  be  recoverable, 

been   for   this   adjudication  ;    in    addition    to  t  Icely  v.   Grew,  6  Nev.  &  Man.  467,  and 

which,   however,    being   engaged  for   the   de-  vide  jaos/,  ch.  xvi. 
fendant,  my  mind  may  have  received  an  un- 

1  So  held  in  Old  Colony  Railroad  Co.  v.  Evans,  6  Gray  (Mass.),  25.  In  a  suit  for  a  breach 
of  covenant  to  convey  land,  its  value  at  the  time  of  the  breach,  and  not  at  the  time  of  the  execu- 
tion of  the  covenant,  is  the  measure  of  damages.  Marshall  v.  Haney,  4  Md.  498 ;  S.  C.  9 
Ibid.  194.  See  also,  Whiteside  v.  Jennings  (19  AJa.  784),  where  various  American  cases  on 
this  subject  are  cited  and  examined. 

-  Where  the  guarantors  in  a  contract,  one  of  whom  was  the  vendor  of  certain  real  estate, 
guaranteed  tiie  vendee  that  it  would  be  worth  S2,S00  on  a  specified  day,  and  that  they  would 
pay  that  sum  for  it  on  that  day  if  he  should  then  elect  to  sell  it,  and  on"  the  day  stipulated  he 
elected  to  sell  and  tendered  them  a  deed  of  the  property  ;  it  was  held  in  an  action  on  the 
guaranty  that  the  measure  of  damages  was  the  price  named,  without  regard  to  the  value  of 
the  land.  Goodpaster  y.  Porter  &  Courtney,  11  Iowa,  161.  And  where  one  sold  land  for 
$5,000,  the  parties  agreeing  that  the  seller  should  have  all  the  advance  the  property  could  be 
sold  for  over  that  sum  within  live  years  with  interest,  and  on  a  certain  day  liie  seller  notified 
the  purchaser  to  sell  the  property,  as  it  could  bring  a  large  advance,  it  was  field  tliat  the  price 
it  would  have  brought  on  that  day  was  the  measure,  not  the  highest  value  for  five  years. 
Means  v.  Milliken,  33  Peun.  State,  517. 


206  REAL    COVENANTS.  [CH.   VI. 

purchase  money,  he  is  bound  to  pay  interest.   The  act  of  taking 
possession  is  an  impHed  agreement  to  pay  interest* 

Contracts  to  Pay  in  Land. — We  have  here  to  take  notice 
of  a  chiss  of  cases  of  not  unfrequent  occurrence  in  the  country, 
growing  out  of  contracts  to  pay  for  work  or  services  in  land. 

Where  a  contract  is  made  to  pay  for  work  by  the  transfer  of 
certain  property,  and  the  agreement  is  not  performed,  the  value 
of  that  property,  as  a  general  rule,  is  the  measure  of 
[193]  damages  ;  because  that  is  the  stipulated  reward  for  the 
services  of  the  party,  whatever  may  be  their  intrinsic 
value.^  This  question  has  presented  itself  in  New  York  and  in 
Pennsylvania  on  parol  contracts  to  pay  for  service  in  land. 
Such  contracts  are  in  the  former  State  void,  under  the  statute 
of  frauds  ;  and  consequently  if  the  party  rendering  the  service 
sue,  he  must  count  generally  for  work  and  labor,  without  refer- 
ence to  the  special  agreement.  If  the  contract  be  to  convey 
land  in  consideration  of  a  specified  sum  payable  in  work,  the 
party  can  recover  the  value  of  his  services,  not  exceeding,  how- 
ever, the  sum  fixed  by  the  agreement ;  and  the  value  of  the  land 
is  not  the  measure  of  damages.  But  if  in  a  contract  of  this 
kind  no  amount  is  specified,  and  the  payment  is  to  be  in  a 
designated  piece  of  land,  the  plaintiff"  fixes  the  value  of  his 
services  by  proving  the  value  of  the  land.^  Such,  also,  is  the 
rule  in  Pennsylvania,^  where  parol  contracts  for  the  sale  of  land 

*  Fludyer  v.  Cocker,  12  Vesey,  27  ;  Stevenson  v.  Maxwell,  2  Corastock,  409. 

1  Generally,  in  what  may  be  called  barter  contracts,  that  is,  contracts  whereby  one  things  is 
to  be  exchanged  for  another,  or  property  for  services,  the  measure  of  damages  in  case  of  a 
breach,  is  in  the  one  case  the  difference  in  value  between  the  two  things,  and  in  the  other 
between  the  property  and  the  service  (post,  203).  So,  in  an  action  of  covenant  on  a  contract 
by  which  the  defendant  agreed  to  build  a  house  for  the  plaintiff,  and  the  plaintiff  to  convey  to 
the  defendant  a  house  and  lot  in  payment,  tlie  breach  being  the  neglect  to  build  the  hou.se,  the 
measure  of  damages  is  the  difference  between  the  value  of  the  house  to  be  built  and  that  of  the 
house  and  lot  to  be  conveyed.  Laraway  v.  Perkins,  10  N.  Y.  371.  Where  the  property  to  be 
exchanged  is  real  estate,  the  damages  include  the  injured  party's  expenses  of  examining  the 
other's  title.  Fagen  v.  Davison,  2  Duer  (N.  Y.),  153.  See  Thomas  v.  Dickinson,  23  Barb. 
(N.  Y.)  431  ;  12  N.  Y.  364. 

'■i  VVhere  a  subscription  Avas  made  to  the  stock  of  a  railway  company  on  the  condition  that 
the  railway  should  pass  by  a  certain  place,  which  condition  the  company  failed  to  comply  with, 
but  before  their  failure  the  subscriber  had  paid  his  suljscription  by  a  transfer  of  land  to  the 
company  :  in  an  action  by  the  subscriber  against  tiie  company  for  breach  of  the  agreement,  the 
measure  of  damages  was  held,  the  value  of  the  land  at  the  time  of  the  transfer.  Jewett  v.  The 
Lawrenceburgh  Railway  Co.  10  Ind.  .539. 

•*  But  although  the  rule  in  Pennsylvania,  as  stated  in  the  text,  has  been  twice  followed  since 
the  decisions  cited  by  the  author  (Malaun's  Ex'rs  v.  Amnion,  1  Grant's  Cases,  123 ;  Beach  v. 
McClintock,  not  reported),  it  is  now  definitely  reversed.  Hertzog  v.  Hertzog's  Adm'r,  34  Penn. 
St.  418.  Again,  in  a  late  case  in  that  State,  it  was  held  that  for  the  breach  of  a  decedent's 
promise  to  convey  a  part  of  an  estate,  in  payment  for  services,  the  measure  of  damages  was  the 
value  of  the  services  and  not  of  the  land.  Graham  v.  Graham,  34  Pcnn.  St.  475.  The  court 
say,  "  Jack  v.  M'Kee  is  no  longer  the  rnle.  The  court  has  returned  from  the  departure  which 
was  made  in  that  case.  The  measure  of  damages  even  for  breach  of  a  covenant  of  seisin,  or  for 
quiet  ejnjoyment,  is  the  consideration  paid."      And  see  M'Nair  v.  Compton,  35  Penn.  St.  23, 


CH.  YI.]  COVENANT  TO  MAKE  PARTITION.  207 

are  valid ;  subject,  however,  to  the  modification,  that  if  before 
the  work  be  done  the  other  party  give  notice,  bona  fide,  of  his 
inability  to  perform,  as  when  he  cannot  make  a  title,  and  of  his 
determination  to  rescind  the  contract,  and  the  vendee  still  goes 
on  to  do  the  work,  the  measure  of  damages  is  not  the  value  of 
the  land,  but  the  amount  of  injury  sustained  under  all  the  cir- 
cumstances.*^ 

Covenant  to  make  Partition.  —  The  effect  of  a  covenant 
to  make  partition  and  execute  releases,  was  much  considered  in 
a  case  in  New  York,t  which  was  an  action  of  assumpsit  for 
money  paid  to  induce  a  party  to  enter  into  an  agreement.^ 

The  plaintiff  and  defendant  were  joint  proprietors  in  the  pro- 
portion of  one  third  and  two  thirds  of  certain  lands,  of  which 
the  plaintiff  had  conveyed  a  part  by  deed,  with  covenants  for 
quiet  enjoyment  and  of  warranty ;  they  then  agreed,  under  seal, 
to  partition  the  tract,  so  that  the  part  conveyed  by  the  plaintiif 
should  be  set  off  as  his  portion,  appointed  three  persons  to 
divide  the  lands,  and  covenanted  to  execute  mutual  releases. 
Partition  being  made,  the  defendant  refused  to  execute  the 
release  agreed  on  :  the  plaintiff  had  paid  the  defendant  four 
hundred  dollars  to  induce  him  to  enter  into  the  agree- 
ment. The  judge  charged  at  the  trial,  that  the  plaintiff  [194] 
was  entitled  to  recover  as  damages  all  that  he  had  been 

*  Burlingame  v.  Burlingame,  7  Cow.  92  ;  Pennsylvania  in  an  able  and  elaborate  opinion, 

Kinj^  V.  Brown,  2  Hill,  485  ;  Rohr  v.  Kindt,  3  per   Black,  J.,  and   the   doctrine    adhered    to. 

Watts  &  Serg.  563  ;  Jack  r.  M'Kee,  9  Barr,  M'Dowell  v.  Oyer,  21  Penn.  417. 

235 ;  Bash  v.  Bash,  Ibid.  260.  t  Shepherd  v.  Ryers,  15  J.  R.  497. 

The  snbjcct  has  been  recently  reviewed  in 

where  it  is  again  declared  that  "  the  law  in  this  class  of  contracts  is  brought  back  to  the  old 
rule  of  looking  for  the  measure  of  damages  to  the  actual  consideration  passing  between  the 
parties." 

^  But  a  parol  contract  for  the  sale  of  land  is  so  far  void  under  the  laws  of  that  State,  that  it 
passes  no  interest  in  the  land  and  furnishes  no  right  to  demand  a  specific  performance.  Dam- 
ages may,  however,  be  recovered  for  the  breach  of  such  a  contract,  the  measure  of  which  is  thus 
stated  bvLowrie,  C.  J.,  in  delivering  the  opinion  of  the  court  in  the  case  of  Bender's  Adm'rs  v. 
Bender,  37  Penn.  419,  —  "  Compensation  for  all  that  the  plaintiff"  did  in  pursuance  of  the  con- 
tract and  in  satisfaction  of  his  part  thereof,  and  for  all  permanent  im]n'ovements  on  the  land 
in  reliance  on  the  contract  with  the  knowledge  of  the  defendant,  deducting  the  value  of  the 
rents  and  profits  during  the  plaintiff's  occupancy." 

In  New  Hampshire  it  is  held  that  where  such  contracts  are  within  the  statute  of  frauds,  the 
value  of  the  laud  is  not  the  necessary  measure  of  damages,  because  to  make  it  such  would  be  to 
give  conclusive  effect  in  one  respect  to  an  agreement  which  the  law  declares  void.  But  the 
actual  loss  sustained  and  expense  incurred  under  all  the  circumstances  of  the  case,  taking  the 
agreement  into  consideration,  furnish  the  measure  of  the  damages  which  the  jury,  if  they  see 
fit,  may  make  eijual  to  the  value  of  the  land.     Ham  v.  Goodrich,  37  N.  H.  185. 

In  Mississi])pi,  where  tiie  proposed  vendor  of  land  in  bad  faith  refuses  to  consummate  a  parol 
agreement  for  the  sale  of  land,  the  proposed  veiulee  is  entitled  to  compensation  fur  the  trouble 
and  loss  of  time  incurred  in  consequence  of  his  confidence  in  the  other,  but  not  for  the  loss  of 
his  bargain.     Welch  v.  Lawson,  32  Miss.  170. 

-  The  rule  respecting  the  measure  of  damages  for  breach  of  contract  to  transfer  and  deliver 
land  cei-tificafes,  is  that  which  applies  to  the  breach  of  contracts  for  the  sale  of  chattels,  not  of 
lands.     Randoa  v.  Barton,  4  Tex.  289. 


208  REAL    COVENANTS.  [CH.    VI. 

obliged  to  pay,  or  was  liable  to  pay  to  the  purchasers  of  the  land 
from  him,  and  the  expenses  of  the  partition  ;  in  other  words, 
two  thirds  of  the  amount  of  the  consideration  money,  with 
interest,  and  one  third  of  the  expenses  of  partition,  together 
with  four  hundred  dollars  and  interest.  A  verdict  was  taken  for 
this  sum ;  but  the  court  set  it  aside,  holding,  that  so  long  as  the 
original  covenant  subsisted,  the  money  paid  by  the  plaintiff  [i  e. 
the  four  hundred  dollars)  could  not  be  recovered  back;  that  no 
eviction  being  shown,  the  plaintiff  could  only  recover,  at  most, 
nominal  damages  ;  and  it  was  suggested  that  the  pjirtition  with- 
out any  conveyance  might  have  the  effect  of  estopping  the 
defendant  to  set  up  any  title  to  his  two  thirds.  The  court  said, 
"  The  plaintiff  might  possibly  apply  to  the  Court  of  Chancery, 
and  compel  a  specific  performance  of  the  defendant's  agreement 
to  release  his  claim  to  these  farms ;  but  as  long  as  he  chooses  to 
rest  upon  his  covenant  for  damages  at  law,  he  must  show  him- 
self damnified,  or  he  can  only  recover  nominal  damages."  ^ 

Agreements  between  Landlord  and  Tenant.  —  Having  thus 
disposed  of  the  covenants  in  deeds,  and  in  contracts  to  con- 
vey land,  we  shall  next  examine  those  contained  in  leases,  or 
in  agreements  between  landlord  and  tenant.^    So  far  as  they  are 

1  Where  the  plaintiff,  holding  another's  obligation  to  advance  him  $10,000  on  receiving 
security  for  its  repayment  by  a  mortgage  of  certain  property  which  was  subsequently,  by 
agreement  of  all  parties,  transferred  to  tiie  defendant,  who  was  to  execute  the  mortgage,  while 
the  plaintirt'  was  still  to  receive  the  $10,000  for  his  own  benefit,  and  the  defendant  declined  to 
execute  the  mortgage,  the  plaintiff  was  held  to  be  prima  facie  damnified  to  the  extent  of  $10,000. 
Eider  v.  Pond,  19  N.  Y.  262. 

-  In  case  of  a  failure  on  the  part  of  a  lessor  to  give  possession  of  the  demised  premises, 
pursuant  to  the  lease,  the  measure  of  damages  has  been  held  in  New  York  to  be  the  difference 
between  the  value  of  the  premises  for  the  term  and  the  rent  reserved.  This  is  the  rule  also  in 
Iowa,  Adair  v.  Bogle,  20  Iowa,  238,  and  holds  good  where  the  rent  is  payable  in  kind.  It 
applies  equally,  whether  the  action  is  brought  njion  the  agreement,  express  or  implied,  or  in 
tort  for  the  violation  of  the  duty  arising  from  the  relation  of  landlord  and  tenant.  Trull  v. 
Granger,  8  N.  Y.  115  [ante,  166).  The  same  rule  of  damages  was  also  laid  down  in  New- 
brough  V.  Walker,  8  Gratt.  (Va.)  16,  where  it  was  also  held  that  conjectural  profits  which 
might  have  been  realized  by  the  lessee  from  the  use  of  the  demised  premises,  could  not  be 
allowed. 

In  Williams  v.  Oliphant  (3  Ind.  271),  which  was  an  action  of  assumpsit  by  lessee  for  lessor's 
refusal  to  give  possession,  the  defendant  on  the  trial  asked  the  court  to  instruct  the  jury  that 
the  rule  of  damages  in  the  case  was  the  difference  between  the  rent  which  ))laiutiff  was  to  pay, 
and  the  market  value  of  the  rent  of  the  jjremises  at  the  time  they  were  to  be  delivered  to  him  ; 
and  that,  if  the  rent  to  be  paid  was  the  highest  in  the  neighborhood,  and  no  greater  rent  could 
be  had  for  the  premises  by  plaintiff,  he  was  only  entitled  to  nominal  damages.  The  court 
refused  to  give  the  instruction  ;  but  gave  the  following  :  "  Remote  or  special  damages,  such  as 
expenses  for  removing  to  a  more  remote  farm,  are  not  to  be  allowed  ;  but  for  all  such  as 
legitimately  and  directly  arise  from  the  breach,  you  are  to  give  the  ])laintiff  the  C(]uivalent  of 
performance  in  money.  If  the  defendant  is  delinquent,  or  in  fault  by  breaking  his  contract,  he 
is  bound  to  repair  the  loss  of  the  plaintiff  thereby."  Held,  that  the  refusal  was  correct,  and 
that  the  instruction  given  was,  so  far  as  it  went,  substantially  correct.  The  rule  as  to  the 
measure  of  damages  upon  the  breach  of  a  contract  for  the  sale  of  goods,  is  not  applicable  to  a 
case  like  the  present.  In  Adair  v.  Bogle,  above,  it  was  held  that  the  plaintiff  might  recover 
special  damages  caused  by  the  breach  of  contract,  as  loss  of  employment,  and  expense  incurred 
in  preparations  for  removal  onto  the  premises. 

On  the  breach  by  the  lessor  of  two  contracts  for  the  lease  for  the  season  of  navigation,  of  the 


CII.  VI.]  BETWEEN  LANDLORD  AND  TENANT.  209 

similar  to  the  covenants  in  deeds,  we  have  ah'cady  considered 
them;*  but  leases  frequently  contain  additional  agreements, 
the  rule  of  damages  in  regard  to  which  we  shall  now  proceed  to 

discuss. 

Covenant  to  Pay  Rent.  —  In  regard  to  the  principal  stipula- 
tion on  the  part  of  the  lessee,  to  pay  rent,  a  question  some- 
times presents  itself  in  regard  to  its  apportionment;  and  it 
appears  that  where  the  plaintiff  fails  to  prove  title  to  the  whole 
estate,  as,  for  instance,  when  there  are  several  assignees 
of  the  original  lessor,  the  apportionment  must  be  accord-  [195] 
ing  to  the  value  of  the  several  parts  held  by  each,  and 
not  according  to  the  quantity  or  number  of  acres.f 

In  an  English  case,t  one  Theobald  had  demised  to  the  plain- 
tiff certain  brick  earth  for  twenty-one  years,  with  full  power  to 
the  lessee  to  dig  annually  one-half  acre,  and  if  he  dug  more,  to 
pay  £875  to  the  lessor  for  every  half  acre  so  dug,  being  after  the 
rate  that  the  whole  brick  earth  ivas  therehf/  sold,  or  intended  to  he 
sold.  The  suit  was  trespass  by  the  lessee  for  digging  ;  and  the 
jury  found  for  the  plaintiff  with  £550  damages,  being  the  full 
value  of  the  whole  of  the  brick  earth  dug  by  the  defendant. 
Chambre,  J.,  considered  that  the  plaintiff's  beneficial  interest 
was  no  more  than  the  difference  between  the  value  of  the  earth 
taken  by  the  defendant,  and  the  price  that  the  plaintiff  must 
have  paid  for  it  if  he  had  taken  it  himself,  and  that  all  the  re- 
maining interest  was  in  reversion.     But  the  court  held  other- 

*  Ante,  lf)5,  ct  seq.     In  the  case  of  Lewis  v.  not  decided,  the  court  being  of  opinion  tliat 

CampljoU,    8    Taunton,    715,   the  etfect   of  a  the  declaration  was  insufficient.   See  Campl^ell 

covenant  for  quiet  enjoyment  in  a  lease  was  v.  Lewis,  S.  C.  in  Error,  3  Barnwall   &  Aid. 

considered,  but  not  decided.     The  plaintiff  set  392. 

out  an  eviction,  and  in  relation  to  his  damages         f  Hodgkins  i\  Robson,  1  Vent.  276  ;  Farley 

averred  that  he  had  "  lost  divers  large  sums  of  v.  Craig,  6  Halst.  262;  Gillespie  v.  Thomas, 

money,   laid    out    in    and    about    the   altcrimj,  15   Wend.  4t)4 ;  Nellis  v.  Lathrop,  22  Wend. 

improvinfi,    and   ornanwntinr/    of  the   premises."  121  ;  Stevenson  r.  Lambard,  2  East.  575 ;  Cole 

Under  this  allegation,  he  sought  to  recover  for  v.  Patterson,  25  Wend.  456  ;  Van  Kenselaer 

additions   of  coach-houses   and  out-buildings,  v.  Bradley,  3  Denio,  135  ;  Van  Kenselaer  v. 

and  also  for  converting  the  lands  into  pleasure  Gallup,  5  Denio,  454 ;  Van  Renselaer  v.  Jones, 

grounds.     The  (piestion  whether  the  measure  2  Barb.  S.  C.  643. 

of  damages  should  be  the  value  at  the  time  of        |  Attersoll  v.  Stevens,  1  Taunt.  182,  198. 
assignment  or  of  eviction,  was  discussed,  but 

bars  of  four  steamers,  two  of  which  were  laid  up  for  a  part  of  the  season,  and  the  others  not 
finished  till  it  was  far  advanced,  the  measure  of  the  lessee's  damages  was  held  to  be  the  amount 
of  rent  \)\\u\  for  the  saloons  while  he  was  deprived  of  their  use,  with  interest  from  the  close  of 
the  season.  McCleary  v.  Edwards,  27  Barb.  2.'59.  In  an  action  upon  a  guaranty  that  a  lessee 
should  perform  his  covenant  to  surrender  the  premises  at  the  end  of  the  lease,  the  rent  stiimlated 
in  the  lease  furnishes  i)resumptivcly  the  measure  of  damages,  to  be  computed  by  reference  to 
the  time  during  which  the  plaintiff  is  kept  out  of  possession.  Otto  v.  Jackson,  35  III.  349  ; 
M.cKinney  i\  Peck,  28  111.  174  ,  Prickett  i\  Hitter,  16  111.  96. 

In  Pennsylvania,  it  is  said  in  general  terms,  that  the  rule  of  damages  for  the  breach  of  a  con- 
tract to  lease,  is  the  same  as  for  a  breach  of  a  contract  to  sell  land.     McClowry  v.  Croghan 
1  Grant's  Cases  (Penn.),307. 
14 


210  REAL    COVENANTS.  [CH.    VI. 

wise.  Mansfield,  C.  J.,  said,  "  The  consequence  of  this  taking 
by  a  stranger,  and  of  this  action  against  a  stranger,  is  as  be- 
tween the  lessee  and  the  lessor,  it  must  be  taken  to  have  been 
dug  by  the  lessee ;  if  this  and  what  himself  had  dug  did  not 
together  exceed  the  half-acre  per  annum,  there  is  nothing  to 
pay ;  but  if  it  exceeds  that  quantity,  the  lessee  must  pay  the 
stipulated  rent  for  the  surplus;"  and  a  rule  to  set  aside  the 
verdict  was  discharged.  Here  the  lease  was  treated  as  a  sale  of 
the  earth.-^ 

Of  other  covenants  found  in  leases,  the  most  frequent  are 
covenants  to  repair,  to  rebuild,  and  to  insure. 

Covenant  to  Kepair.  —  As  to  the  general  rule  of  damages  in 
an  action  on  covenants  of  this  nature,  it  was  said  by  Lord  Holt, 
in  an  early  case,  "  We  always  inquire  in  these  cases  what  it 
will  cost  to  put  the  premises  in  repair,  and  give  so  much  dam- 
ages.*^ But  in  a  recent  case  it  was  suggested  that  the  true 
rule  would  be  the  loss  which  the  landlord  would  sustain  if  he 
sold  his  reversion  in  the  market.f  In  Vivian  v.  Champion,  Lord 
Holt  said,  speaking  in  the  loose  manner  in  which  the  subject  of 
compensation  is  treated  in  the  early  decisions,  "  In  these 
actions  there  ought  to  be  very  good  damages  ;  and  it  has  always 
been  practiced  so  before  me,  and  everybody  else  that  I  ever 
knew."  T.his  is  a  strong  illustration  of  the  extreme  laxity 
which  pervades  all  the  early  cases  on  the  subject  of  damages. 

Upon  the  covenant  by  the  lessee  to  repair,  it  has  been 
doubted  whether  an  action  could  be  brought  before  the  expi- 
ration of  the  term,  as  the  tenant  might  put  the  premises  in 
repair  at  any  time  before  his  occupation  terminated ;  and  in 
such  a  case  in  New  York  it  was  insisted  on  this  ground  that  the 
plaintiff,  the  landlord,  could  recover  only  nominal  dam- 
[196]  ages.$  But  it  seems  well  settled,  both  in  England  and 
this  country,  that  on  the  covenant  to  repair,  the  suit 

*  Vivian  v.  Champion,  2  Lord  Raym.  1125.         \  Schicffclin  v.  Cavjienter,  15  Wend.  400. 
t  Smith  u.  Peat,  9  Exchequer,  IGl. 

^  In  an  action  for  rent,  against  a  lessee  who  has  been  evicted  by  title  paramount,  and  offsets 
his  damages  by  reason  of  the  eviction  to  the  claim  for  rent,  it  is  error  to  instruct  the  jury  that 
the  fact  that  the  lease  was  not  assignable  without  the  lessor's  consent  is  innnaterial  in  ascer- 
taining its  value,  although  when  the  lessee  took  the  lease  he  intended  to  occupy  the  premises 
for  his  own  use  during  the  term.     Rice  i'.  Baker,  2  Allen  (Mass.),  411. 

^  See  Nixon  v.  Dcnham,  1  Jebb  &  Symes,  416.  Where  the  lessors  of  a  hotel,  by  the  terms 
of  the  lease,  were  bound  to  keep  it  in  good  rcjiair,  the  tenant  was  held  to  have  his  option  to 
make  the  repairs  and  recover  the  expense  of  tlicm  from  the  landlord,  or  to  ouiit  to  make  them 
himself  and  seek  his  recompense  l)y  an  action  for  damages,  and  having  ado])ted  the  latter  course 
he  was  held  entitled  to  recover,  or  to  recoup  against  the  landlord's  claim  in  his  action  for  the 
rent  (brought  under  the  Code  of  Procedure),  the  fair  value  of  the  use  of  a  ])ortion  of  the  j)rem- 
iscs  which  had  remained  unoccupied  from  the  want  of  proper  repairs  during  the  time  they  were 
so  unoccupied.     Myers  v.  Burns,  33  Barb.  (N.  Y.)  401. 


CH.  VI.]  BETWEEN  LANDLORD  AND  TENANT.  211 

may  be  l)rouglit  before  tlie  end  of  the  term,  and  that  of  course 
actual  damages  are  recoverable.*  ^ 

In  the  same  State,!  where  in  tlie  lease  of  a  ferry  the  lessee 
covenanted  to  maintain  and  keep  it  in  good  order,  and  mstead 
of  so  doing  diverted  travellers  from  the  usual  landino-  to 
another  landing  owned  by  himself,  by  means  whereof  the 
tavern  stand  belonging  to  the  plaintiff,  the  lessor,  situated  on 
the  first  landing,  was  so  injured  in  its  business  as  to  become 
tenantless ;  it  was  held  in  an  action  by  the  landlord  for  breach 
of  covenant,  that  he  might  assign  and  was  entitled  to  recover 
as   damao-es  the  loss  of  rent  of  the  tavern  stand.     But  in  a 

o 

su1)sec|uent  decision.^  it  was  intimated  that  the  breach  of  cove- 
nant in  this  case  was  regarded  as  fraudulent. 

In  an  action  on  an  agreement  to  keep  the  premises  of  [197] 
every  description  in  good  and  sufficient  repair  at  the  ten- 
ant's expense,  it  was  held  that  the  defendant  might  show,  and 
the  jury  might  consider,  the  state  of  repairs  at  the  commence- 
ment of  the  demise,  in  order  to  compute  the  damages  for 
which  the  defendant  was  liable.§ 

In  a  suit  brought  in  the  English  Court  of  Exchequer,  on  a 
covenant  to  repair,  it  appeared  that  the  premises  which  had 
been  destroyed  by  fire,  were,  at  the  time  of  the  defendant's 
taking  them,  old  and  in  bad  repair ;  that  the  cost  of  reinstating 
them  would  be  £1,635,  but  when  so  reinstated  they  would  be 
more  valuable  by  £600  than  they  were  at  the  time  of  the  fire. 
It  was  held  that  the  defendant,  being  unable  to  make  good  the 
damages  to  the  premises  without  putting  them  in  a  better  state, 
was  liable  to  pay  as  much  only  as  would  put  the  premises  in 
the  same  state  of  repair  as  when  he  took  them;  and  £600  were 
deducted  from  the  total  cost  of  repairs.  This,  it  may  l^e 
observed,  is  in  analogy  to  the  deduction  of  the  rule  of  one  third 
new  for  old,  which  we  shall  have  occasion  to  notice  when  treat- 
ing of  Marine  Insurance. ||  ^ 

*  Luxmore  i-.  Kobson,  1  B.  &  Aid.  584.  §  Burdettw.  Withers,  2  Ncv.  &  Per.  122. 

t  Dewint  y.  Wiltse,  9  Wend.  .32.1.  ||  Yates  v.  Dunster,  24   Eng.   Law  Journal 

t  Blanchard  v.  Ely,  21  Wend.  342.  R.  226. 

1  The  defendant,  an  under-lessee  who  had  covenanted  with  the  plaintiff,  his  lessor,  to  keep, 
and  at  the  expiration  or  other  sooner  determination  of  the  term,  to  deliver  u])  the  premises  in 
re])air,  allowed  them  to  fall  out  of  repair,  —  while  in  tliis  condition  the  superior  iandlortl,  hav- 
ing ejected  the  phiintiff  and  defendant  for  non-iiayment  of  rent,  the  plaintiff  was  held  entitled 
to  substantial  damages  for  the  non-repair  of  the  premises.  L)avies  v.  Underwood,  2  H.  & 
N.  570.  Where  land  had  been  demised  under  a  lease  for  900  years,  including  covenants  to 
pay  rent  and  to  keep  the  i)remises  in  good  repair,  the  payments  of  rent  fell  into  arrear  and  the 
premises  out  of  repair.  Upon  a  suit  in  equity,  it  was  held  that  the  petitioners  were  entitled  to 
substantial  damages  for  breaches  of  the  covenant  to  repair,  and  not  merely  to  such  a  sum  as 
would,  if  kept  at  interest  unril  the  eiul  of  the  term  of  900  years,  then  suffice  to  ])ut  the  premises 
in  repair.     M'Xamara  v.  Vincent,  2  Irish  I'^q.  481. 

2  Sec  a  minute  discussion  as  to  the  elements   properly  entering  iuto  the  computation   oi 


212  REAL    COVENANTS.  [CH.    VI. 

In  an  action,*  brought  by  lessee  against  lessor,  on  a  lease 
containing  a  covenant  "  to  repair,  and  keep  in  good  and  tenant- 
able  repair,  all  the  external  parts  of  the  demised  premises,"  it 
was  proved  that  the  corporation  of  Exeter,  where  the  property 
was,  had  taken  down  the  adjoining  building ;  that  this  had 
weakened  the  wall  of  the  plaintif}"'s  house,  and  that  he  was 
obliged  to  remove.  After  repeated  fruitless  requests  to  the  de- 
fendant to  repair,  the  plaintiff  gave  him  notice  that  he  should 
go  on  to  rebuild  at  his  (the  defendant's)  expense.  While  the 
work  was  going  on  the  plaintiff  removed  to  other  premises, 
where  he  made  some  alteration  to  enable  him  to  carry  on  this 
business,  and  restored  things  to  their  original  state  when  his 
own  building  was  completed,  and  claimed  for  all  this  in  dam- 
ages ;  but  the  Court  of  Queen's  Bench  said,  "  We  are  of  opin- 
ion tliat  the  defendant  was  not  bound  to  find  the  plaintiff 
another  residence  whilst  the  repairs  went  on,  any  more  than  he 
would  have  been  bound  to  do  so  had  the  premises  been  con- 
sumed by  fire ; "  and,  therefore,  the  items  for  rent  and 
[198]  taxes  of  the  house  temporarily  taken  by  the  plaintiff, 
and  those  for  alterations  and  restorations  of  it  were  de- 
ducted ;  intimating,  however,  that  if  any  evidence  had  been 
offered  as  to  the  length  of  time  during  which  the  plaintifi'  was 
obliged  to  be  in  another  house,  by  reason  of  the  defendant's 
delay  in  not  acting  on  the  notice  given  him  by  the  plaintift'  to 
repair,  it  might  have  been  considered.  And  the  actual  cost  of 
repairing  and  replacing  the  fixtures  of  the  demised  premises,  of 
the  surveyor's  charge  for  superintendence,  and  for  injury  to  the 
plate-glass  and  plastering,  were  allowed,  the  two  last  on  the 
ground  that  if  the  defendant  had  taken  proper  steps  to  sup- 
port the  wall  whilst  the  carpenters  were  taking  down  the 
adjacent  building,  the  injury  would  have  been  avoided.^ 

*  Green  v.  Bales,  2  Q.  B.  R.  225. 

damages,  in  an  action  of  breacli  of  covenant  to  repaii-,  in  Middlekauflp  v.  Smith,  1  Md.  343. 
Fisher  v.  Goebel,  40  Missouri,  475,  was  an  action  for  tlie  Ijreach  of  a  covenant  by  a  lessor  to 
build  a  wall.  The  rule  laid  down  by  Holmes,  J.,  on  a  full  consideration  of  the  authorities,  was 
that  only  the  actual  damages  resulting  from  the  defendant's  default  in  relation  to  the  wall,  "  to 
be  measured  by  what  it  would  cost  to  rebuild  the  wall,  together  with  any  loss  that  may  have 
been  sustained  as  the  direct  and  immediate  consequence  ot  the  insufficiency  of  the  wall  and  the 
breach  of  the  covenant,  could  be  recovered." 

1  Where  by  the  terms  of  the  lease  of  a  qnarry,  the  defendants  were  bound  to  repair  a 
drain  on  the  premises,  and  the  plahitiff  notified  them  it  was  out  of  repair,  it  was  held  that 
if  they  neglected  to  repair  it,  and  the  plain titf  should  do  so,  the  measure  of  his  damages 
would  be  the  cost  of  the  repairs ;  but  the  defendants  having  been  notified  to  make  the 
repairs,  agreed  from  time  to  time  to  do  so,  and  tinally  did  so,  but  not  until  two  months  after 
they  ought.  In  consequence,  the  plaintiff  was  unable  to  woi'k  his  (juarry,  and  the  court  held 
that  he  was  entitled  to  recover  the  actual  damages  thereby  sustained.  Keyes  ?'.  Western  Vt. 
Slate  Co.  34  Vt.  81.  So  in  an  action  against  a  landlord  for  breach  of  covenant  to  repair, 
although  the  ordinary  measure  of  dainages  is  the  amount  it  would  have  cost  the  tenant  to 
]nake  the  repairs,  where  the  landlord  has  nuide  them  in  a  negligent  and  insuffi;'.2nt  way,  the 
tenant  should  be  compensated  for  the  actual  damage  resulting.  Walker  u.  Swayzee,  3  Abbott's 
Pr.  K.  136. 


I 


en.    VI.]  BETWEEN    LANDLORD    AND    TENANT.  213 

In  ail  action  brought  on  a  covenant  to  keep  one  half  of  a 
mill-dam  in  repair,  it  was  held  in  Massachusetts  that  the  plaintiff 
was  entitled  to  recover  only  one  half  of  the  actual  expense 
incurred  in  repairing  the  dam ;  and  that  he  was  not  entitled  to 
damages  for  any  loss  of  profits  in  business,  in  consequence  of 
the  neglect  of  the  defendant  reasonably  to  aid  in  making  the 
repairs,*  ^  In  a  case  of  trespass  we  have  seen  that  such  dam- 
ages have  been  allowed  ;  t  ^nd  this  distinction  indicates  the  dis- 
position, of  which  we  find  other  proofs,  to  treat  the  wrong-doer, 
even  where  exemplary  damages  are  not  claimed,  with  more 
severity  than  the  party  who  fails  to  perform  a  contract.^  ^ 

Connected  with  this  branch  of  our  subject,  in  England,  is  the 
subject  of  repairs  which  incumbents  of  ecclesiastical  property 
are  there  requii'ed  to  put  upon  it,  and  which,  if  not  made,  may 
form  the  subject  of  an  action  by  the  incoming  incumbent  against 
the  representatives  of  the  outgoing  one.  The  duty  of  the  in- 
cumbent is  stated  in  the  old  books  to  be  'pro  reparatione  aid 
necessarid  re-edlficaiione  of  the  premises  ;  §  and  this  has  been,  in 
the  modern  cases,  declared  to  mean  that  the  occupant  of  the 

*  Tliompson  v.  Sliattuck,  2  Met.  615.  been  sued,  he  may  notify  the  vendor  to  appear 

t  White  V.  Moseley,  8  Piek.  3.56  ;  ante,  80.  and  defend  the  suit,  and  provision  is  made  by 

J  In   Tennessee,  in  covenant  for  breach  of  law  for  making  him  defendant ;  but  there  is 

warranty  of  title  to  real  estate,  a  verdict  and  no  priiiei|)le  by  which  he  can  be  substituted  as 

judgment  ajiain St  the  vendee  of  a  tract  of  land  a  plaintitf  in  the  action  of  ejectment ;  and  we, 

in  an  action  of  ejectment,  instituted  by  him  therefore,  can  think  of  no  reason  for  notifying 

against  a   third   person    in   possession,   with  him   in   such  a  case   to  appear."     Ferrell  v. 

notice  to  the  vendor  to  ajipcar  and  ])rosecute,  Alder,  8  Humphreys,  44. 
is  no  evidence  of  a  l)etter  outstanding  title;         §  Salkard  w.  Bcckwirh,  1  Lester,  116;  Jen- 

the   court   saying,    "Where    the   vendee   has  kins  y.  Betham,  15  C.  B.  168,  182. 

1  But  wliere  one  had  rented  the  plaintiff  his  flouring  mill  for  three  years,  and  agreed  to  put 
in  operation  in  it  certain  additional  machinery,  which  was  defectively  done,  but  the  defects 
could  have  been  repaired  at  an  ex|icnsc  of  S120,  but  were  not  repaired,  and  in  conseipience  of 
them  tlie  plaintiff  lost  tlio  use  of  tlie  mill,  the  true  measure  of  damages  was  held  by  the 
Supreme  Court  of  Illinois  to  be  the  value  of  the  use  of  the  additional  machinery.  The  court 
distinguish  the  case  from  that  of  Blanchard  v.  Ely  (21  Wend.  .342,  ante,  71,"  196),  on  the 
ground  that  there  the  defendants  had  accepted  the  boat  before  she  was  entirely  finished,  and 
had  gone  on  at  their  own  expense  and  made  the  necessary  alterations.  Had  the  jilaiutiff  in 
the  present  case  repaired  the  machinery,  which  he  was  not  bound  to  do,  he  could  probably  have 
recovered  only  the  ex])ense  thus  incurred.  Green  v.  Mann,  11  III.  61.3.  A  lease  which  was 
not  assignable  without  the  landlord's  assent,  contained  a  covenant  that  the  sub  cellar  of  the 
premises  should  be  "  free  from  percolation  of  water  through  the  walls."  The  difference  in  the 
yearly  value  of  the  lease  was  not  a  proj)cr  measure  of  damages  for  a  violation  of  this  covenant. 
Bcukard  v.  Babcock,  17  Abb.  (N.  Y.)  421. 

A  railroad  corjxjration,  in  consideration  of  an  amicable  settlement  of  his  damages  by  the 
owner  of  lands  taken  for  their  road,  agreed  with  him  to  fence  the  land  taken  ;  and,  failing  to 
do  so  within  a  reasonable  time,  were  sued  by  him  tor  breach  of  the  agreement.  It  was  held, 
that  a  subse(]uent  erection  of  the  fences  by  them,  without  the  plaintiff"'s  consent  or  ap]irol)a- 
tion,  did  not  affect  his  right  to  recover,  and  that  the  measure  of  his  danuigeswas  tlie  sum  which 
it  would  fairly  cost  to  erect  the  fences  according  to  the  agreement.  Lawton  v.  The  Fitchburg 
Eailroad  Co."8  Cush.  (Mass.)  R.  230.  But  compare  The  Chicago  and  Rock  Islaiul  Railroad 
Co.  V.  Ward,  16  111.  522,  where  the  net  value  of  a  growing  crop,  lost  through  breach  of  agree- 
ment to  fence,  was  taken  into  consideration  in  awarding  damages. 

^  But  sec  ante,  114,  note. 


214  REAL    COVENANTS.  [CH.    VI. 

premises  must  keep  them  in  good  and  substantial  repair,  re- 
build wlien  necessary,  but  without  regard  to  ornament ;  *  and 
on  this  footing  the  damages  in  case  of  dilapidation  are  to  be 
computed.^ 

Covenant  TO  Rebuild.  —  In  an  action  on  a  covenant!  to  re- 
build contained  in  a  lease,  the  defendants  were  assignees,  and  the 
plaintiff's  wife  tenant  for  life.  The  plaintiff  contended  that  as 
tenant  for  life,  she  was  entitled  to  recover  general  damages  — ; 
in  other  words,  the  whole  amount  of  damages  sustained  by  the 
brea(;h,  and  was  not  to  be  restricted  to  a  compensation  measured 
by  the  extent  of  her  particular  estate.  But  Gibbs,  C.  J.,  at  Nisi 
Prius,  held  otherwise,  and  that  the  tenant,  in  tail  or  in  fee,  might 
have  an  action  on  the  covenant,  and  recover  for  the  injury  done 
to  his  reversionary  interest.^ 

In  New  York  §  it  is  held  that  where  it  is  covenanted  between 
the  lessor  and  the  lessee,  that  at  the  expiration  of  the  term,  the 
buildings  and  improvements  on  the  demised  premises  are  to  be 
valued  by  persons  to  be  chosen  by  the  parties,  which  A^aluation 
the  lessor  is  to  pay  the  lessee  ;  if,  on  the  expiration  of  the  term, 
the  lessor  refuses  to  agree  on  the  appraisers,  and  the  lessee  ap- 
points them,  and  has  the  buildings  appraised,  the  valuation  thus 
made,  being  ex  parte,  is  not  conclusive  as  to  the  amount  of  dam- 
ages, but  that  they  are  to  be  ascertained  by  the  jury. 

Covenant  to  Insure.  —  In  England,  it  has  been  held  by  Lord 
EUenborough  at  Nisi  Prius,  that  where  a  lease  contains  a  cove- 
nant to  repair  the  premises,  and  also  to  insure  them  for  a  specific 

*  Wise?;.  Metcalfe,  10  B.  &  C.  299  ;  Jenkins  J  This  case  was  reconsidered  in  7  Taunt. 

V.  Betliam,  15  C.  B.  168.  410,  liut  on  another  point. 

t.  iMelyn  and  wife  v.  Raddish  and  others,  1  §  Holiday  v.  Marshall,  7  J.  R.  211. 
Holt,  54.3. 

1  Another  covenant  sometimes  found  in  leases  is  that  to  renew,  for  the  breach  of  which  the 
natural  measure  of  dama,2:es  is  "  the  value  of  the  thinji-  which  the  pluintifi'  lost  by  the  non- 
renewal of  the  lease."  Robinson  v.  Harman,  1  Exch.  850,  cited  ante,  184.  And  in  an  action 
for. breach  of  this  covenant  against  the  personal  representatives  of  a  lessor  holding;-  under  the 
College  of  Dublin,  where  the  covenantor  had  been  evicted  by  title  paramount,  the  jury,  in 
determining  the  value  of  the  lease,  were  allowed  to  consider  the  evidence  of  a  witness  as  to  such 
value,  founded  on  the  risk,  on  one  side,  that  the  College  might  not  renew,  and  the  chance  on 
the  other  that  they  would. 

And  in  the  same  case,  although  the  plaintiffs  gave  no  evidence  of  any  eviction  from  the  pos- 
session of  the  lands  in  question  by  the  lessor  or  any  person  under  him,  the  refusal  of  the  judge 
to  direct  the  jury  to  find  nominal  damages  only,  was  sustained.  Strong  v.  Kcan,  13  Irish  Law 
Rep.  9.3.  But  in  Pennsylvania,  the  same  rule  has  been  applied  to  the  breach  of  this  contract  as 
to  that  of  warranty  in  a  deed.  And  where  one  bought  of  a  tenant  an  unexpired  lease,  on  the 
agreement  of  tlie  landlord  to  renew  it  at  the  expiration  of  the  term,  and  they  both  refused 
•to  so  renew,  and  the  landlord  died  before  the  end  of  the  term,  it  was  held  that  the  measure  ot 
damages  in  a  suit  against  the  landlord's  administrator,  was  the  price  paid  and  interest, 
and  not  the  value  of  the  contract.     McClowry  v  Croghan,  31  Fenn.  St.  22. 


CH.    VI.]  BETWEEN   LANDLORD    AND    TENANT.  215 

amount  against  fire,  the  sum  fixed  in  the  latter  covenant  does 
not  regulate  the  damages  under  the  former.*  ^ 

*  Digby  V.  Atkinson,  4  Campb.  275. 

1  In  an  action  to  recover  damages  for  breach  of  a  covenant  to  jiay  taxes  and  assessments,  it 
was  held  by  the  Sn])orior  Court  of  New  York  that  only  nominal  damajjcs  could  be  recovered 
where  the  ])!aintitf  had  not  actually  paid  the  assessments.  Hector,  &c.,  of  Trinity  Church  v. 
Hi^'gjns,  4  Kobertsoa  1,  372. 


CHAPTER  YII. 

THE   MEASURE    OF   DAIVIAGES    IN   ACTIONS    ON    CONTRACTS. 

General  Rules  of  Compensation  in  Personal  Actions  founded  on  Breach  of  Con- 
tract, without  Penalty  or  Liquidated  Damages.  —  Damages  limited  to  the  Re- 
sults of  tlie  Breach  of  Contract.  —  Motives  of  the  Defendant  not  inquired  into. 
Exceptions.  —  The  Contract  controls  the  Measure  of  Damages.  —  Exceptions  — 
Tender,  how  far  equivalent  to  Performance  in  reference  to  Damages.  —  Com- 
pensation in  Cases  of  Partial  or  Imperfect  Performance  of  Contract.  —  Rule 
of  Damages  on  Continuing  Agreements.  —  Agreements  to  do  various  Acts.  — 
Quantum  meruit.  —  Forms  of  Action  employed.  —  Account  obsolete. 

Actions  Relating  to  Personal  Property.  —  Havino;  thus  con- 
sidered  the  rules  which  govern  compensation  in  cases  relating 
to  real  estate  growing  out  of  actions  regarding  its  possession, 
its  occupation,  enjoyment,  and  contracts  for  its  transfer,  we  now 
proceed  to  consider  the  great  class  of  cases  relating  to  personal 
property,  including,  of  course,  personal  services. 

These  actions  generally  grow  out  of  negotiable  paper,  policies 
of  insurance,  the  sale  and  warranty  of  chattels,  contracts  of 
agency,  suretyship,  or  other  express  executory  agreements  sealed 
or  unsealed,  as  well  as  those  implied  contracts  which  the  law 
engrafts  upon  a  legal  liability.  These  subjects  will  be  considered 
separately  ;  but  before  doing  so  it  will  be  well  to  bear  in  mind 
the  general  principles  upon  which  the  English  and  American 
law  proceed  in  cases  ex  contractu. 

Common  Law  Principles  in  Cases  of  Contract.  —  "  Damages  * 
are  recoverable  in  every  personal  action  which  lies  at  the  com- 
mon law."  t  The  language  of  the  civil  law  is.  Loco  facii  im- 
praedabllis  succedit  damnum  et  interesse.  We  have  already 
[200]  considered  the  subject  of  nominal  damages,  and  seen  how 
far  the  courts  go  for  the  mere  purpose  of  declaring  a 
right.  We  are  now  to  examine  those  cases  of  contract  where 
substantial  relief  is  demanded ;  and  the  two  cardinal  principles 

*  Saycr  on  Damages,  ch.  1,  p.  6.  actual  loss,  the  plaintiff  is  at  all  events  entitled 

t  xiHLt,  45,  et  seq.     So  in  Tennessee,  where     to  a  jiidfinient  for  nominal  damages  and  costs, 
there  has  been  a  breach  of  contract  without    Seat  v.  Moreland,  7  Humphreys,  575. 


CH.    VII.]  GENERAL    RULES.  217 

wliicli  will  be  found  to  pervade  and  regulate  this  braiicli  of  our 
subject,  are,  First,  that  the  plaintijff'  must  show  himself  to  have 
sustained  damao^e,  or,  in  other  words,  that  actual  compensation 
will  only  be  given  for  actual  loss ;  and,  Secondlf/,  that  the  con- 
tract itself  furnishes  the  measure  of  damages.  These  two  rules 
are  closely  interwoven  with  each  other,  and  it  is  impossible  to 
consider  them  altogether  separately.  The  first  rule  is  one  of 
great  importance.  It  excludes  a  large  class  of  cases  in  which 
relief  is  often  sought  before  an  injury  has  occurred  ;  and  we 
shall  have  frequent  occasion  to  refer  to  it.  So  a  surety  cannot 
sue  his  principal  till  he  has  paid  the  debt;  nor  a  covenantee  for 
quiet  possession  his  grantor,  till  he  has  been  evicted ;  nor  a 
covenantee  against  incumbrances,  till  he  has  paid  the  incum- 
brance ;  nor  a  principal  his  agent,  till  he  has  paid  the  loss  sus- 
tained by  the  hitter's  misconduct.*  This  rule  is,  however,  not 
without  exception,  as  we  shall  hereafter  see.  The  second  rule, 
that  the  contract  itself  furnishes  the  measure  of  damages,  is 
of  equal  importance.  We  have  already  adverted  to  it  gen- 
erally, but  we  have  now  to  consider  it  more  fully,  and  at  the 
same  time  to  notice  such  exceptions  to  it  as  may  be  found  to 
exist. 

Vague  Discretion  of  Jury  Formerly. — We  have  already  had 
occasion  to  observe  the  vague  discretion  that  in  the  early  books 
is  attributed  to  the  jury  in  the  matter  of  damages.!  Thus  in 
a  case  already  referred  to,  as  late  as  the  reign  of  James  I., 
where  the  plaintiff  sued  the  defendant  on  a  covenant  that  if 
certain  land  conveyed  to  him  by  the  defendant  fell  short  of  a 
specified  measurement,  he,  the  defendant,  would  pay  a  fixed  sum 
for  every  deficient  acre,  and  alleged  that  the  number  of  acres 
wanting  would  have  amounted  to  the  sum  of  ,£700,  and  the  jury 
gave  but  <£400  damages,  —  it  was  held,  that  this  was  w^ell  found ; 
and  it  was  said,  "  If  all  the  land  was  wanting,  still  the  jiirij  are 
chancellors,  and  can  give  such  damages  as  the  case  requires  in 
equity."  % 

*  Letrare  i'.  Fraser,  3  Strobhart,  337.  formed  usually  regulated  the  amount  of  dam- 
t  Ante,  22.  ages,  the  jury  in  an  action  altogether  in  dam- 
X  Sir  liaptist  Hixt's  case,  3  Roll.  Abr.  703  ;  ages  did  in  some  instances  exceed  that  meas- 
Trial,  pi.  9.  In  Kentucky,  in  an  action  of  ure ;  but  they  did  not  so  because  the  law 
covenant  on  an  agreement  to  pay  for  property,  subjected  the  covenantor  to  the  payment  of 
judgment  was  obtained.  Suit  was  brought  interest,  but  in  the  exercise  of  a  sound  discre- 
on  tliat  judgment,  and  the  jury  were  told  tion  with  which  they  were  invested,  regulated 
that  tlwij  iccre  hound  to  give  interest  on  the  by  what  under  the  peculiar  circninstauces  of 
judgment.  The  original  agreement  contained  the  case,  the}-  might  think  just."  And  for  the 
no  stipulation  for  interest.  The  Court  of  Ap-  reason  that  the  charge  controlled  the  discre- 
peals said  :  "  It  is  true,  according  to  the  an-  tion  of  the  jury,  the  judgment  was  reversed, 
cient  course  of  the  common  law,  although  Guthrie  v.  Wickliff,  4  Bibb,  541 ;  S-  V.  Cogs- 
the  value  of  the  things  covenanted  to  be  per-  well's  Heirs  v.  Lyons,  3  J.  J.  Marsh.  38. 


218  CONTRACTS.  [CIT.    VII. 

[201]  So,  even  as  late  as  the  mirldle  of  the  last  century,  in  an 
action  for  escape  against  the  sheriff,  Lord  C.  J.  Wilniot 
said,  "  In  actions  on  the  case,  the  damages  are  totally  uncertain 
and  at  large."  *  So,  a  standard  text- writer  t  uses  this  language : 
"  In  all  actions  which  sound  in  damages,  the  jury  seem  to  have  a 
discretionary  power  of  giving  what  damages  they  think  proper; 
for  though  in  contracts  the  very  sum  specified  and  agreed 
on  is  iisnaUi/  given,  yet  if  there  are  any  circumstances  of  hard- 
ship, fraud,  or  deceit,  though  not  sutticient  to  invalidate  the 
contract,  the  jury  may  consider  them,  and  proportion  and  miti- 
gate the  damages  accordingly ;  as  in  the  case  upon  a  policy  of 
insurance,  which  was  a  cheat,  for  an  old  vessel  was  painted,  and 
goods  of  no  value  put  in  the  vessel,  and  about  <£1,500  insured  on 
it,  and  then  the  ship  was  voluntarily  sunk."  There  can  be  no 
stronger  proof  of  the  revolution  that  has  been  effected  in  this 
branch  of  our  law,  than  is  furnished  by  this  citation.  Here, 
even  on  promissory  notes,  the  jury  are  said  to  have  power  to 
give  a  sum  less  than  that  expressed  in  them ;  and  a  contract 
which  now  the  law  would  pronounce  utterly  void,  is  declared  to 
be  a  matter  for  the  mere  discretion  of  the  jury. 

Compensation  is  now  usually  a  Question  of  Law. — It  is,  in 
truth,  but  slowly  and  at  comparatively  a  recent  period  that  the 
jury  has  relinquished  its  control  over  actions  even  of  contract, 
and  that  any  approach  has  been  made  to  a  fixed  and  legal 
measure  of  damages.  But,  by  degrees,  the  salutary  principle 
has  been  recognized,  and  it  is  now  well  settled,  that  in  all  ac- 
tions of  contract,  subject  to  the  exception  already  noticed,  and 
in  all  cases  of  tort  where  no  evil  motive  is  charged,  the 
[202]  amount  of  compensation  is  to  be  regulated  by  the  direc- 
tion of  the  court,  and  the  jury  cannot  substitute  their 
vague  and  arbitrary  discretion  for  the  rules  which  the  law  lays 
down.^ 

It  is,  in  fact,  indispensable  that  it  should  be  so  :  the  measure 
of  damages  is  the  gist  of  the  remedy ;  the  remedy  is  no  part 

*  Ravenscroft  v.  Eyles,  2  Wils.  295.  f  Bacon  Ab.  Tit.  Damages,  D. 

1  In  actions  for  breach  of  contract, no  damages  can  be,  in  general,  recovered,  ■which  are  inca- 
pable of  being  specitically  stated  and  appreciated  with  certainty,  and  which  dc])cnd  merely  on 
the  feelings  or  inclination  of  the  jnry  to  give.  Hamlin  v.  The  Great  Northern  Railway  Co.  1 
H.  &  N.  Exch.  408.  Compare  Bradley  v.  Denton,  3  Wis.  557.  The  general  rule  is,  compensa- 
tion.    Robinson  v.  Varnell,  16  Tex.  .382.     See  ante,  39,  head  page  36,  note  1. 

The  measure  of  damages  for  the  violation  of  a  simple  contract,  where  vindictive  damages 
are  not  autiiorized,  is  the  amount  necessary  to  put  the  party  injured  in  as  good  a  condition 
when  the  contract  was  broken,  as  if  he  had  not  made  the  contract.  Jones  v.  Van  Patten,  3 
Ind.  107.  See  also,  Meade  v.  Rutledge,  11  Tex.  44 ;  Baldwin  v.  Bennett,  4  Cal.  392  ;  Cunning- 
ham V.  Dorsey,  6  Ibid.  19. 


CII.    VII.]  COMPENSATION    A    QUESTION    OF    LAW.  219 

of  the  facts  of  the  cause,  while,  on  the  other  hand,  it  so  com- 
pletely controls  the  rights  of  the  parties,  that  if  any  absolute 
discretion  be  given  to  the  jnry  over  the  amount  of  com])ensa- 
tion,  the  power  of  the  court  over  questions  of  law  would  be 
most  emphatically  a  barren  sceptre.  The  measure  of  damages 
in  all  cases,  then,  where  no  complaint  is  made  of  evil  motive,  is 
a  pure  question  of  law;  in  all  cases  of  contract,  the  sole  object 
of  the  court  is  to  ascertain  the  agreement  of  the  parties,  and 
that  agreement,  as  a  general  rule,  controls  the  measure  of  remu- 
neration.^ '•  In  contracts,"  said  the  Supreme  Court  of  Massa- 
chusetts,* "  where  the  precise  sum  is  fixed  and  agreed  on  by  the 
parties,  as  in  many  actions  of  assumpsit  and  of  covenant,  the 
jury  are  confined  to  that  sum."  "  In  no  case,"  says  the  Consti- 
tutional Court  of  South  Carolina,  "  where  the  action  is  for 
money  had  and  received,  goods  sold  and  delivered,  or  for  work 
and  labor  performed,  which  from  the  nature  of  the  contract 
itself  furnishes  the  standard  of  assessment,  are  the  jury  allowed 
to  ii'ive  more  than  the  amount  received,  with  interest,  or  the 
value  of  the  articles  delivered  or  the  services  rendered."!^  So 
in  Ohio,  where  land  had  been  sold  at  a  given  price,  and  the  secu- 
rities turnino;  out  valueless  the  original  owner  of  the  land  brouo-ht 
suit,  and  it  was  contended  for  the  defendant  that  he  had  a  right 
to  show  the  value  of  the  land  ;  but  the  Supreme  Court  said, 
"  The  law  permits  parties  in  their  agreements  to  fix  their  own 
terms,  conditions,  and  prices,  and  the  court  did  not  err  in  holding 
the  amount  estimated  by  themselves,  with  the  interest  thereon, 
to  be  the  rule  of  damages."  t  "  It  is  urged,"  says  the  Supreme 
Court  of  Pennsylvania,  "  that  the  standard  furnished  by  the 
contract  may  be  resorted  to  as  a  measure  of  damages,  but  not  as 
the  measure.  If  it  be  not  the  exclusive  measure,  it  must  be  disre- 
garded altogether.  If  it  be  but-  one  of  many  standards,  then 
there  is  no  standard  at  all,  or  as  good  as  none.  The  jury  are 
without  a  rule  when  they  have  a  choice  between  different 
rules. "§  "  There  are  certain  established  rules,"  says  the  Court 
of  Exchequer  in  England,  "  according  to  which  the  jury  ought 
to  find.     And  here  there  is  a  clear  rule,  that  the  amount  which 

*  Lcland  v.  Stone,  10  Mass.  459.  J  Taft  v.  Wildman,  15  Ohio,  123. 

t  Fan-and  v.  Bouchell,  Harper's  R.  83,  and         §  M'Dowell  v.  Oyer,  21  Penn.  417. 
j:ost,  204. 


1  Prickett  v.  Badger,  1  C.  B.  (N.  S.)  296. 

2  To  create  a  liability  beyond  the  rule  here  stated,  there  must  be  something:  in  the  terms  of 
the  contract,  read  in  the  li^ht  of  siirroiindinf,'  circumstances,  Avhich  shows  an  intention  on  the 
part  of  the  vendor  to  assume  a  wider  res]ionsibility  than  is  assumed  by  the  vendor  in  ordinary 
contracts  for  the  sale  and  delivery  of  merchaiuUse.  Clark  v.  Moore,  3  Mich.  55  ;  Cuddley  v. 
Major,  12  Mich.  368. 


220  CONTRACTS.  [cil.    VII. 

would  have  been  received  if  the  contract  had  been  kG\)\,  is  the 

measure  of  damages  if  the  contract  is  broken."  *  ^ 
[203]  "  It  is  desirable,"  says  the  Supreme  Court  of  Massa- 
chusetts, "  to  have  as  definite  and  precise  rules  on  the 
subject  of  damages  as  practicable."  f  "A  proper  administra- 
tion of  justice  requires  that  the  rules  established  by  law  for  the 
assessment  of  damages  should  be  adhered  to,"  says  the  Supreme 
Court  of  Louisiana. t  It  has  been  repeatedly  said,  that  courts 
will  not  attempt  to  modify  the  contracts  of  the  parties.  Their 
only  duty  is  to  expound  and  to  enforce  them. 

Contracts  to  be  Paid  in  Property  or  Services. —  In  connection 
with  this  subject,  it  may  be  noticed  that  where  the  contract  is 
one  by  which  the  plaintiff  is  to  receive,  not  money  but  the 
transfer  of  certain  property  or  services,  then  the  value  of  the 
original  consideration  is  not  to  be  inquired  into,  but  the  value 
of  the  property  or  services  is  the  measure  of  damages,  because 
this  is  the  remuneration  fixed  by  the  agreement.  So,  as  we 
have  seen,§  where  land  is  the  mode  of  payment,  the  value  of 
the  land  is  the  compensation.  So  where  the  plaintiff  had  for- 
borne a  debt,  in  consideration  that  the  defendant  would  build  a 
house  and  give  a  lease  of  it,  the  value  of  the  lease  was  the 
standard.||  "If,"  said  Parke,  B.,  "the  consideration  is  to  be 
paid  in  money,  it  must  be  paid ;  if  by  the  delivery  of  a  thing 
of  ascertained  value,  that  value  is  the  measure  of  damages." 
So,  where  a  wagon  was  transferred  in  consideration  that  the 
defendant  would  break  up  certain  land,  the  value  of  the  labor, 
and  not  of  the  wagon,  was  held  to  be  the  measure  of  dam- 
ages.^ So  again,  if  the  rent  of  mills  is  to  be  paid  in  repairs, 
the  measure  of  damages  is  the  value  of  the  repairs  agreed  to 
be  made,  and  the  plaintiff  cannot  recover  on  a  quantum  meruit? 
In  other  words,  when  there  is  an  express  agreement  proved, 
the  plaintiff  cannot  resort  to  an  implied  one.**  ^ 

*  Alder  v.  Keighley,  15  Mees.  &  W.  117.  §  Supra,  193. 

t  Batclielder  v.  Sturij:is,  3  Gush.  201.  ||  Strutt  v.  Farlar,  16  Mees.  &  W.  249. 

X  Arrowsmith   v.   Gordon,  3   La   Ann.   K.  "H  Ellison  v.  Dove,  8  Blackf.  ^1\. 

105.  **  B.'ddwin  v.  Lessner,  8  Cobb's  Georgia,  71. 

1  The  following  eases  illnstrate  the  principle  that  the  contract  furnishes  the  measure  of  dam- 
ages :  Leeroy  v.  Wiggins,  31  Ala.  13;  Herberts.  Stanford,  12  Ind.  503;  Evans  v.  Chicago 
andll.  I.  R,  II.  Co.  20  III.  189;  Springdale  Cemetery  Association  v.  Smith,  24  III.  480:  Mc- 
Glellan  v.  Snyder,  18  111.  58  ;  Cotiee  v.  Meigs,  9  Cal.  3G3  ;  Atlantic  and  La  Grange  R.  R.  Co.  v. 
Hodnctt,  29  Geo.  (Martin)  461  ;  Addams  u.  Tutton,  39  Penn.  447  ;  Commonwealth  Ins.  Co.  v. 
Sennett,  37  Penn.  205  ;  Brigham  v.  Ilawley,  17  111.  38.     See  Powell  on  Ev.  213. 

^  So  for  breach  of  covenant  to  teach  a  slave  a  trade,  the  measure  of  damages  is  the  addi- 
tional value  he  would  have  gained  from  the  trade.  Bell  v.  Walker,  5  Jones  (Law),  N.  C-  43. 
(This  law,  though  sound,  is  happily  obsolete.) 

2  Where  one  agreed  with  a  surviving  partner  that  he  would  pay  the  firm's  debts  if  the  part- 
ner would  apply  the  firm's  property  to  his  debts,  it  was  held  in  an  action  brought  on  this  agree- 


CII.    Yli.]  MOTIVE    NOT    INQUIRED    INTO.  221 

Motives  of  Contracting  Parties  Disregarded.  —  We  have  now 
to  consider  the  exceptions  which  have  been  engrafted  upon  this 
general  rule,  that  the  contract  as  a  matter  of  law  fixes  the 
damages.^  And  the  first  that  presents  itself,  is  that  gi'owing 
out  of  the  question  whether  the  motives  of  the  defaulting  party 
are  in  any  case  to  be  taken  into  consideration. 

It  has  been  already  said  *  that  our  law  makes  a  broad  [204] 
distinction  on  the  subject  of  comj^ensation  between  ac- 
tions of  contract  and  actions  of  tort,  and  while  it  permits  the 
jury  in  the  latter  instance  to  take  into  consideration  the  in- 
tention of  the  offending  party,  to  review  all  the  circumstances 
of  the  case,  and  to  make  their  verdict  conduce  to  the  pur- 
poses of  punishment  as  well  as  compensation,  that  on  the 
other  hand  in  actions  of  contract  the  motive  or  cminms  of  the 
defendant  is  entirely  disregarded,  and  the  damages  are  strictly 
limited  to  the  direct  pecuniary  loss  resulting  from  the  breach  of 
the  agreement  in  question. 

This  rule  has  been  hitherto  stated  without  argument,  as  the 
clear  and  irresistible  inference  from  the  structure  of  our  forms 
of  action,  and  the  rules  of  evidence  applied  to  them  ;  but  as 
suggestions  to  the  contrary  have  been  in  a  few  instances  made, 
and  as  some  exceptions  undoubtedly  exist,  it  is  proper  here 
more  particularly  to  assign  the  reasons  upon  which  I  suppose 
the  general  rule  to  rest. 

"  There  are  instances,"  says  Mr.  Chitty  in  his  very  valuable 
work  on  Contracts,!  "  in  which  the  defendant  may  be  regarded 
in  the  lig-lit  of  a  wrong:-doer  in  breaking;  his  contract ;  and  in 
such  case  a  greater  latitude  is  allowed  the  jury  in  assessing  the 
damages;"  and  he  refers  to  a  case,$  of  an  action  of  debt  on 

*  Ante,  28,  35,  36,  187,  188.  evidenceof  fraud  has  incidentally  appeared,  and 
t  Page  684.  so  blended  with  the  other  testimony  showing 
I  Lord  Sondes  v.  Fletcher,  5  B.  &  Aid.  835.  the  breach  of  contract  that  it  could  not  be  ex- 
There    may   be    some    other    English    cases  eluded,  it  has  been  allowed  to  influence  the 
which  give  color  to  the  doctrine  as  laid  down  damages,  without  the  point  being  in  any  way 
by  Mr.   Chitty ;  but   I   find   none   where  the  discussed. 

point  has  been  discussed  or  decided,  with  the  But  in    South    Carolina  the   question   has 

exception  of  those  subsequently  referred  to  in  been  discussed  at  large,  and  the  ground  dis- 

thc  text.     It  may  well  be  that  in  cases  where  tinctly  taken,  that  even  in  cases  of  assumpsit. 

ment  by  the  surviving  partner  that  the  measure  of  damages  was  the  amount  the  other  should 
have  paid.     Weildle  v.  Stone,  12  Ind.  625. 

The  measure  of  damages  in  an  action  by  the  father  to  recover  the  earnings  of  his  minor  son, 
is  not  what  the  son's  labor  would  have  been  worth  to  the  father,  but  what  the  son,  had  he  been 
of  age  to  contract,  would  have  been  entitled  to  from  the  employer.  Weeks  v.  Holmes,  12  Cush. 
(Mass.)  215. 

1  In  an  action  for  breach  of  contract,  the  contract  price  is  the  measure  of  damages,  unless 
the  defendant  shows  by  evidence,  that  the  damage  actually  sustained  is  less  than  tlie  price 
agreed  upon.  Pond  v.  Wyman,  15  Mo.  175.  See  also,  Baldwin  v.  Bennett,  4  Cal.  392.  By 
claiming  the  benefit  of  a  special  contract,  and  making  it  the  r/raranien  of  his  action,  the  ])lain- 
tiff  is  precluded  from  recovering  damages  for  delay,  etc.,  and  the  contract  is  to  regulate  the 
amount  to  be  recovered.     Bush  v.  Chapman,  2  Iowa  (Greene),  549. 


222 


CONTRACTS. 


[CII.    VII. 


[205]  bond  given  to  rcsig-n  a  living,  where  the  defendant  re- 
fused to  perform  the  condition  of   his  agreement,  but 


damii<j;es  will  be  given  on  the  ground  of  iVaud. 
The  high  authority  of  the  courts  of  that 
Statu  demand  tor  tiieir  decisions  a  soniewliat 
extended  notice.  An  action  of  assumpsit  was 
brought  there,  to  recover  damages  upon  the 
sale  of  cotton,  alleged  to  be  fraudulently  and 
falsely  packed  by  having  the  cotton  in  the  cen- 
tre of  tlie  i)ales  wet.  It  was  sent  to  Liverjwol 
and  sold  as  sound  cotton,  at  the  then  current 
price  After  the  sale  the  fraud  was  discovered, 
and  the  cotton  returned,  and  resold  as  dam- 
aged, at  a  considerable  loss.  The  defendants 
contended  that  if  liable  at  all,  the  plaintiffs 
could  oidy  recover  the  price  paid  at  Charles- 
ton, with  interest.  The  i)rcsiding  judge, 
however,  instructed  the  jury  that  they  nnglit 
give  a  verdict  for  the  whole  amount  of  dam- 
age that  the  plaintiffs  had  sustained,  which 
was  the  difference  between  the  two  sales  in 
Liverpool,  with  interest.  The  jury  having 
found  a  verdict  according  to  the  direction  of 
the  court,  on  motion  for  a  new  trial,  the  court, 
by  Mr.  Justice  Nott,  said,  "  Assumpsit  is 
nomeii  generalissiniuiii,  under  which  a  great 
variety  of  special  cases  are  embraced.  The- 
danuiges  to  be  recovered  must  always  depend 
on  the  nature  of  the  action  and  the  circumstances 
of  the  case.  In  an  action  for  money  had  and 
received,  the  actual  amount  of  money  received 
(with  interest  in  some  cases)  should  be  the 
measure  of  damages  ;  in  an  action  for  goods, 
or  any  specitied  chattel  sold  and  delivered,  the 
value  of  the  thing  sold ;  and  so  on  in  all 
other  cases  which  furnish  a  standard  by  which 
the  jury  can  be  governed.  But  in  cases  of 
fraud  and  other  cases  merely  soanding  in  dam- 
ages, the  jury  may  give  a  verdict  to  the  whole 
amount  of  the  injury  sustained,  or  imaginary 
damages." 

After  commenting  on  the  case  of  an  action 
for  a  breach  of  pronnse  of  marriage,  and  other 
English  cases,  the  court  proceeded  :  — 

"  I  apprehend,  that  after  all  these  cases,  it 
can  no  longer  be  considered,  as  has  been  some- 
what confidently  asserted  in  this  case,  that 
even  vindictive  damages  may  not  be  given  in  an 
action  of  assumpsit ;  and  surely  it  will  not  be 
denied  that  the  plaintiff  may  recover  the 
amount  of  the  loss  ivhich  he  has  actuatli/  sus- 
tained.'''* It  will  be  noticed  that  two  judges 
dissented. 

And  in  a  subsequent  case  of  covenant  on  a 
bill  of  sale  of  a  negro,  warranting  his  sound- 
ness (the  breach  assigned  being  the  unsound- 
ness of  the  negro),  the  judge  charged  that  the 
only  measure  of  recovery  was  the  amount  of 
consideration  mentioned  in  the  deed,  and  in- 
terest. A  motion  was  made  for  a  new  trial, 
and  the  court,  referring  to  the  previous  case, 
said,  "  This,  it  will  be  recollected,  is  an  action 
of  covenant,  an  action  sounding  altogether  in 
damages,  and  the  measure  of  recovery  is  to 
the  extent  of  the  injury  which  the  party  sus- 
tains    by    the     infraction    of    the    covenant. 


whether  it  be  partial  or  total,  and  must  neces- 
sarily depend  on  the  jjarticular  circumstances 
of  the  case,  although  the  consideration  jiaid 
might,  in  most  cases,  constitute  the  best  evi- 
dence of  the  injury  wdiich  a  party  sustained; 
yet  in  actions  sounding  altogether  in  damages, 
it  seems  to  me  to  follow  of  necessity  that  the 
measure  of  I'ccovery  nuist  dejicnd  t)n  the  jiar- 
ticular  circumstances  of  the  case  ;  "  and  a  new 
trial  was  gran  ted. t 

Again,  in  another  case,  an  action  being 
brought  by  a  mechanic  for  work  and  labor, 
etc.,  in  the  erection  of  a  house  for  the  defend- 
ant,-the  jury  having  allowed  an  arbitrary  sum 
of  double  tlie  amount  of  interest  due,  the  ver- 
dict was  set  aside,  thecom-t  saying,  "  There  is 
no  doubt  that  damages  at  the  discretion  of 
the  jury  may  sometimes  be  given  in  an  action 
of  assumpsit,  as  where  the  action  is  founded  in 
fraud  or  deceit,  or  when  a  party  fails  to  per- 
form a  contract,  by  which  the  other  party  sus- 
tains a  special  damage,  or  where  it  is  so  badly 
performed  as  to  frustrate  the  expectations  of 
the  party  for  whose  benefit  it  was  intended.  .  . 
.  .  But  in  no  case  where  the  action  is  for 
money  had  and  received,  goods  sold  and  de- 
livered, or  for  work  and  labor  performed, 
which,  from  the  nature  of  the  contract  itself, 
furnishes  the  standard  of  assessnient,  are  the 
jury  allowed  to  give  more  than  the  amount 
received,  with  interest  on  the  value  of  the 
articles  delivered  or  the  services  rendered." 
Ferrand  v.  Bouchele,  Harper's  Reports,  83, 
a7mo  1823. 

The  English  authorities  referred  to  in  the 
first  of  these  cases,  are  Nurse  v.  Barnes,  T. 
Raymond,  77  {ante,  86)  ;  Stuart  v.  Wilkins, 
Douglass,  18;  and  Williamson  w.  Allison,  2 
East.  446  ;  neither  of  which  seems  to  me, 
with  deference,  to  bear  upon  the  question,  nor 
am  I  able  to  understand  what  the  court  means 
by  the  phrase  "  sounding  in  damages."  All 
actions  at  law,  except  on  contracts  for  a  sum 
certain,  may  be  said  to  sound  in  damages. 
But  what  appears  more  fatal  than  the  absence 
of  express  authority,  is  the  general  system  of 
our  jurisprudence,  and  the  fact  that  if  this 
rule  of  danuiges  ajijdies  to  one  form  of  the 
action  of  assumpsit,  it  must  equally  apply  to 
all ;  that  if  it  be  sound,  no  reason  whatever 
can  be  assigned  why  vindictive  danuiges 
should  not  be  given  for  the  malicious  or 
fraudulent  refusal  to  pay  a  promissory  note; 
and  to  carry  it  to  this  extent  would,  I  think, 
vii-tually  revolutionize  not  only  our  rules  both 
of  pleading  and  of  evidence,  but  introduce 
most  serious  innovations  in  the  general  rules 
which  regulate  the  rights  of  parties.  Whether 
such  a  revolution  be  or  be  not  desirable,  is,  as 
I  have  already  said,  another  and  a  very  differ- 
ent question. 

*  Rose  &  Rodgers  v.  Beattie,  Nott  &  M'Cord,  538, 
1820. 

t  Garrett  v.  Stuart,  1  M'Oord,  514,  anno  1821. 


CH.    VII.]  MOTIVE   NOT    INQUIRED    INTO.  223 

without  any  circumstances  of  aggravation,  and  the  court, 
on  a  motion  for  a  new  trial,  said  that  the  defenchmt  [20G] 
being  a  ivrong-doer,  the  jury  were  not  bound  to  fix  their 
verdict  at  the  precise  vaUie  of  the  hviug  to  him;  and  on  the 
further  ground  that  the  plaintiff  had  offered  to  waive  all  dam- 
ages if  the  defendant  woidd  resign  the  living,  they  refused  a 
new  trial.^ 


^  The  case  of  Hawkins  v.  Coultliurst,  5  B.  &  S.  543,  cited  elsewhere ,  was  an  action  to 
recover  from  the  assured  tlie  amount  of  a  ])olicy  of  insurance  on  his  life  on  wiiich  lie  was  to 
pay  the  prcniinnis,  and  whieii  he  had  assijiiied  to  trustees  for  his  creditors  by  a  deed  containing 
a  covenant  that  he  would  not  do  anythin;;  to  avoid  the  i)oliey,  which  covenant  he  brtjke  by 
Soiiii;-  beyond  the  limits  of  lOuropc  without  a  license  from  the  directors,  contrary  to  a  jjrovision 
in  the  policy  wliich  was  thereby  avoided.  The  plaintiff's  counsel,  relying  on  the  doctrine  of 
Mr.  Chitty,  cited  in  the  text,  insisted  that  the  damages  were  to  be  assessed  on  the  highest 
j)rinciple,  and  that  the  plaintiffs  were  entitled  to  recover  the  full  amount  of  the  policy.  But 
the  court  hckl  that  its  value  only  could  be  recovered,  making  allowance  for  the  premiums  which 
the  dcfenilant  had  covenanted  to  pay. 

But  u])on  ))rinciple,  why  should  tliere  be  a  distinction  between  allowing  exemplary  damages 
in  the  case  of  a  willful  breach  of  a  contract  and  that  of  a  willful  wrong  {  In  the  latter  case,  as 
in  the  former,  the  line  of  compensation  is  overstepped,  and  a  wholly  new  standard  introduced, 
and  if  damages  ai-e  to  be  allowed  in  civil  actions  between  individuals  from  social  or  goveru- 
mental  considerations,  the  expediency  of  the  rule  in  the  one  case  is  the  same  as  in  the  other. 

In  principle,  jierhaps,  some  progress  has  iieen  made  towards  applying  the  rule  to  dishonest 
breaches  of  contract.  Thus,  as  seen  elsewhere,  it  is  well  settled,  both  in  England  and  gen- 
erally in  this  country,  that  it  applies  to  fraudulent  breaches  of  contract;  for  the  conveyance  of 
real  estate  (see  ante,  186,  209).  Hopkins  v.  Grazebrook,  6  Barn.  &  Ores.  31  ;  Sweem  v. 
Steele,  5  Iowa,  3.52  ;  McNair  v.  Compton,  35  renn.  23.  And  the  same  rule  governs  the  case 
of  the  sale  of  the  right  of  shooting  over  a  manor  which  is  merely  an  incor])orcal  hereditament. 
Pounsett  V.  Fuller,  17  C  B.  660.  So  in  New  York,  the  allowance  of  the  rent  of  a  tavern 
stand  as  damages  for  the  breach  of  a  contract  to  rejjair  a  ferry  (Dewintz  v.  Wiltse,  9  Wend. 
.325)  was  explained  on  this  ground  by  the  ISupreme  Court  of  New  York.  Blanchard  v.  Ely, 
21  Wend.  342,  350  (see  pp.  87,  96).  So  in  Pennsylvania,  in  an  action  of  contract  for  the  sale 
of  specitic  stock  which  was  broken  in  good  faith  by  the  vendor,  the  stock  having  been  sold  by 
his  agent  without  his  knowledge  to  another  party,  the  plaintiff  was  held  entitled  to  nominal 
damages  only,  the  court  placing  the  decision  on  the  vendor's  good  faith.  Wilson  v.  Whitaker, 
49  Pcnn.  State,  114  (iuite,  55).  And  it  is  familiar  law  that  fraud,  in  vitiating  as  it  does 
every  contract,  makes  a  sum  of  money,  which  by  tlie  contract  is  to  fall  due  at  a  future  time, 
recoverable  immediately  by  the  party  defrauded,  without  rebate  for  the  interest,  to  that  extent 
punishing  the  author  of  the  fraud.  So  where  a  deed  was  fraudulently  obtained  through  an 
agreement  to  give  satisfactory  security  for  the  unpaid  balance  of  the  purchase  money — half  in 
one  year  and  lialf  in  two  years  —  an  action  for  its  recovery  was  held  immediately  maintain- 
able, in  wliich  the  rule  of  damages  was  the  sum  to  have  been  received.  Ascutney  Bank  v. 
McK.  Ormsby,  28  Vt.  721. 

Again,  a  very  nice  distinction  is  sought  to  be  maintained  between  circumstances  sliowing 
malice  or  wantonness  in  the  breach  which  go  in  aggravation  of  the  injury  itself,  and  the  same 
or  similar  circumstances  wdiich  do  not  have  that  result.  See  2  Greenl.  Ev.  37,  253,  254,  256, 
266,  272.  Thus  in  the  case  of  Coppin  v.  Braithwaite  (8  .Jur.  875),  which  was  an  action  for 
breach  of  a  contract  to  carry  the  ])laiiitiff  from  London  to  Sheerness,  by  putting  him  ashore  at 
an  intermediate  port,  Mr.  Baron  Parke  allowed  in  aggravation  of  the  damages  evidence  show- 
ing that  this  had  been  done  in  a  rude  and  abusive  manner,  saying  that  it  made  a  most  material 
difference  whether  the  contract  were  broken  because  of  the  inconvenience  of  carrying  it  out, 
or  whether  the  plaintiff  were  turned  out  under  circumstances  of  aggravation.  But  the  dis- 
tinction, if  it  exist,  is  very  refined.  If  the  material  injury  inflicted  is  not  increased  by  the 
mode  of  the  breach,  there  can  be  no  standarc^for  any  enhancement  in  the  rate  of  compensation 
on  that  account.  And  if  the  injury  be,  in  a  legal  sense,  thus  increased  in  one  case,  it  is  not 
easy  to  see  why  it  should  not  be  so  in  all  eases  where  the  breach  is  wanton,  and  therefore  addi- 
tionally offensive.  We  think  the  distinction  is  but  a  further  evidence  of  a  disposition  to  return 
to  a  unilorm  rule  on  this  subject,  applying  to  contracts  willfully  broken,  as  well  as  torts  will- 
fully inflicted. 

The  rule  in  the  text,  however,  as  a  rnle,  is  still  substantially  unshaken  wherever  forms  of 
action  prevail.  These  interpose  an  insuperable  difficulty  —  we  tliink  the  only  one  —  to  harmo- 
nizing the  rule  upon  this  subject.  When  all  the  circumstances  of  one  transaction  and  all 
elements  of  the  same  claim  can  be  considered  and  disposed  of  in  one  suit,  there  will  remain 


224  CONTRACTS.  [CH.    VII. 

This,  which  is  the  only  English  authority  cited  for  the  posi- 
tion, is  very  far  from  supporting  the  doctrine  of  Mr.  Chitty's 
text ;  and  it  must  in  all  cases  require  very  clear  and  stringent 
authority  to  warrant  so  great  a  disturbance  of  the  settled  prin- 
ciples of  pleading  and  evidence.  It  is  to  be  borne  in  mind,  that 
the  rules  of  damages  are  all  intended  to  conform  to  those  other 
fundamental  rules  which  determine  the  issue  to  be  tried  and 
the  testimony  on  which  it  is  to  be  decided.  Pleading  prescribes 
the  form  of  action,  and  declares  the  precise  issue.  Evidence 
points  out  the  testimony  to  be  given  in  support  and  discharge 
of  the  demand,  while  the  damages  are  awarded  in  conformity  to 
those  rules  which  govern  the  proceedings  in  the  cause  down  to 
the  time  of  trial. 

Distinct  Forms  of  Action  in  Contract.  —  As  to  the  pleadings, 
it  is  the  constant  and  sedulous  object  of  the  Anglo-American 
law,  to  draw  a  distinct  line  between  actions  of  contract  and 
those  of  tort,  ex  contractu  and  ex  delicto ;  and  the  rigor  with  which 
this  distinction  is  maintained  in  regard  to  joinder  of  counts, 
causes  of  action,  and  election  of  actions,  is  familiar  learning.  No 
form  of  action  has  yet  been  devised  for  the  fraudulent  breach 
of  an  agreement.* 

But  what  becomes  of  this  distinction,  if  in  an  action  of  con- 
tract damages  are  to  be  awarded  on  the  ground  of  the  fraud, 
malice,  or  other  ill  conduct  of  the  defendant  ?  Every  action  of 
contract  may  become  one  of  tort,  and  the  barrier  between  these 
classes  of  actions  is  at  once  and  completely  broken  do^vn. 

[207]  Rules  of  Evidence  Preclude  Consideration  of  Motive  in 
Common  Law  Actions.  —  Again,  as  to  the  rules  of  evidence^ 
while  it  is  ]3erfectly  true  that  in  actions  of  tort  every  attendant 
circumstance  of  aggravation  can  be  given  in  evidence,  on  the 
other  hand,  nothing  is  better  settled  than  that  in  actions  of 
contract  the  parties  are  limited  to  the  mere  evidence  of  the 
breach  of  contract.  But  if  damao-es  are  to  be  awarded  on  ac- 
count  of  the  oppressive,  malicious,  or  fraudulent  conduct  of  the 

*  As  far  as  the  rules  of  pleading  are  con-  need  it  be  proved.     Stuart  v.  Wilkins,  Doug, 

cenied,  the  only  color  for  this  theoiy  is  de-  17  ;  Williamson  v.  Allison,  2  East,  446.     But 

rived  from  the  rule   that   on  a  warranty  of  tRis  is  very  wide  of  the  doctrine,  that  in  ac- 

chattels  either  case  or  assumpsit  will  lie,  and  tions  of  contract  damages  can  be  given  for 

that  if  the  former  be  brought  and  fraud  laid,  acts  of  a  tortious  nature, 
the  scienter  need  not  be  charged,  nor  if  charged 

no  valid  objection  to  allowing  exemplary  damages  for  a  malicious  breach  of  contract  which 
docs  not  apply  to  a  willful  tort.  See  Jones  v.  Steamship  Cortes,  17  Cal.  487  (cited  208,  note 
1),  where  exemplaiy  damages  were  allowed  in  an  action  for  breach  of  contract  under  the  new 
system  of  pleading. 


CH.    VII.]  MOTIVE   NOT   INQUIRED    INTO.  225 

defendant,  it  is  manifest  that  this  rule  cannot  be  maintained; 
if  one  party  gives  evidence  of  such  a  character,  it  is  plain  that 
the  other  must  have  the  right  to  rebut  the  testimony,  and  in 
this  way  the  form  of  the  action,  the  issue  ex  conlradu,  and  the 
rules  of  testimony,  would  be  completely  lost  sight  of  If,  at 
the  trial,  the  evidence  of  a  breach  of  contract  were  complete, 
certainly  an  ofter  to  show  that  the  defendant's  act  was  dictated 
by  a  malicious,  fraudulent,  or  oppressive  spirit,  would  not  be 
allowed;  and  it  is  very  clearly  inadmissible  to  consider  as  in 
evidence  for  the  purpose  of  regulating  the  damages,  testimony 
incidentally  introduced,  which  could  not  be  directly  given.  And 
what  limit  is  to  be  assigned  to  the  operation  of  this  rule  ?  If  it 
holds  o-ood  in  reo'ard  to  one  contract,  it  should  be  true  as  to  all. 
It  will  be  noticed  hereafter,  that  with  the  exception  of  the  State 
of  South  Carolina,  it  has  been  applied  only  to  contracts  in  regard 
to  real  property ;  but  if  sound  as  to  an  action  of  covenant  with 
regard  to  real  estate,  it  must  be  equally  so  as  to  an  action  of 
assumpsit  on  a  promissory  note.  And  if  the  motives  of  the  de- 
fendant are  to  be  inquired  into,  what  sort  of  an  examination  is 
to  be  instituted  ?  Is  fraud  alone  to  be  repressed,  or  are  malice 
and  oppression  to  be  equally  sought  out  and  punished,  as  in 
ordinary  cases  of  tort  ? 

Fraud  in  Conveyance  of  Kind. — In  one  of  the  earlier  cases  in 
wdiicli  it  was  intimated  that,  in  cases  of  fraud  in  the  conveyance 
of  land,  the  rule  of  damages  would  be  carried  beyond  the  meas- 
ure in  an  ordinary  case  of  breach  of  covenant,  a  different  form 
of  action  was  clearly  pointed  out.  "  If  any  imposition,"  said 
the  Supreme  Court  of  New  York,  "  is  practiced  by  the  grantor, 
by  the  fraudulent  suppression  of  truth-  or  suggestion  of  false- 
hood in  relation  to  his  title,  the  grantee  may  have  an  action 
on  the  case  in  the  nature  of  a  writ  of  deceit ;  and  in  such  action 
he  would  recover  to  the  full  extent  of  his  loss."  *^  "It 
is  agreed  on  all  hands,"  said  Savage,  C.  J.,  f  in  a  suit  [208] 
brought  on  the  covenant  against  incumbrances,  "  that  if 

*  Pitcher  V.  Livingston,  4  J.  R.  1,  12.  t  Dimmick   v.  Lockwood,   10  Wend.    149, 

155. 

1  In  a  case  in  South  Carolina,  the  defendant  had  sohl  and  conveyed  to  the  plaintiff  for  a 
sum  certain  one  lumdred  and  twenty  acres  of  hind,  to  fifty-four  acres  only  of  which  he  had  a 
title.  Of  the  otiier  acres,  fifty-six  belonged  to  the  State,  from  which  the  plaintiff,  subsequent 
to  the  defendant's  conveyance,  obtained  a  grant  of  them.  The  remaining  ten  were  covered  by 
an  old  grant.  In  an  action  of  deceit  by  the  vendee,  it  was  held  by  the  Supreme  Court  of  the 
State,  applying  the  rule  of  compensation  for  actual  loss,  that  the  measure  of  damages  was  the 
pro  rata  proportion  of  the  consideration  belonging  to  the  ten  acres  covered  by  the  adverse  title, 
and  the  expense  of  obtaining  the  grant  of  the  fifty-six  acres.  Parker  v.  Walker,  12  Rich.  L. 
(S.  C.)  R.  138. 

15 


226  CONTRACTS.  [CH.    VH. 

fraud  can  be  shown,  or  concealment  which  would  be  evidence  of 
it,  that  would  constitute  a  good  ground  of  action,  in  which  the 
purchaser  would  recover  all  his  damages;  "  and  the  learned 
reporter,  in  his  marginal  note,  assumes  this  to  be  an  action  on 
the  case. 

The  action  on  the  case  for  fraud  in  the  sale  of  land  is  recog- 
nized by  the  highest  authorities  in  our  law,  and  by  repeated 
decisions;  and  its  existence  furnishes  another  reason  why  the 
remedy  in  the  action  on  the  contract  should  not  be  pushed 
beyond  its  legitimate  limits.* 

General  Conclusion.  —  On  the  whole,  therefore,  notwith- 
standing the  cases  cited  in  the  notes,  and  the  authority  of  the 
tribunals  by  wdiich  they  are  decided,  I  conclude  that  so  long  as 
our  present  forms  of  action,  rules  of  pleading  and  evidence, 
exist,  their  clear  and  irresistible  result  is,  that  the  damages  in 
actions  of  contract  are  to  be  limited  to  the  consequence  of  the 
breach  of  contract  alone,  and  that  no  regard  is  to  be  had  to  the 
motives  which  induce  the  violation  of  the  agreement.!  ^ 

*  Har.  &  But.  Notes  to  Co.  Lit.  384  a;  An  able  article  in  the  London  Law  Maga- 
Coin.  Diji'.  Action  on  tlie  Case  for  deceit,  A.  zine  and  Quarterly  Review,  for  JMay,  1855, 
8  ;  Culver  v.  Avery,  7  Wend.  380  ;  Sandford  arrives  at  tlie  same  conclusion.  The  learned 
f.  llaiuly,  23Wend.  2f)0;  Van  Eps  y.  Harri-  writer  says:  "In  assessing  damages  in  an 
son,  5  Hill,  63.  I  am  far  from  desiring  to  ex-  action  or  contract,  can  the  intention,  animus, 
press  any  o])inion  in  favor  of  the  doctrine  of  or  motive  of  the  party  charged  be  inquired 
the  text;  on  the  contrary,  if  the  plain titf  in  into?  Clearly  this  cannot  be  done;  the  iu- 
an  Anglo-Saxon  court  of  justice  shall  ever  be  quiry  suggested  would  be  wholly  irrelevant 
permitted  to  state  his  complaint  according  to  to  the  issue  joined  ;  "  —  and  in  regard  to  the 
the  actual  facts,  and  not  be  compelled  to  use  subject  of  vindictive  damages,  the  article 
an  unmeaning  formula,  I  can  see  no  reason,  says,  "  In  actions  of  tort  the  jury  are  permit- 
greatly  as  legal  relief  would  be  thus  extended,  ted  to  take  into  consideration  the  aiiiimts  of 
why  exemplary  danuiges  should  not  be  given  the  offending  party,  and  to  assess  the  dam- 
for  a  fraudulent  or  malicious  breach  of  con-  ages  upon  a  general  survey  of  all  the  cir- 
tract,  as  well  as  for  any  other  willful  wrong,  cumstances  adduced,  the  verdict  thus  being 
Damages  are  given  by  the  civil  law  in  many  sometimes  made  to  operate  not  merely  as 
cases  of  tliis  kind.  So  they  are  in  Louisiana,  compensatory,  but  to  some  extent  by  way  of 
the  juris])rudence  of  which  State  is  very  nnich  punishment.  ' 

fashioned  on  tlie  great  Roman  original.  But  t  In  Louisiana,  where  the  subject  of  dam- 
it  does  not  appear  to  me  that  as  yet  the  prin-  ages  is  controlled  by  the  Code,  it  has  been 
ciple  has  been  engrafted  in  any  regular  or  said,  "  That  in  case  of  breach  of  contract, 
practical  way  on  the  common  law,  unless  in  whether  by  the  negligence  or  fraud  of  a  party, 
the  exceptions  subsequently  stated  in  the  no  other  sum  can  be  allowed  as  damages  than 
text.  In  this  work,  my  only  object  is  to  ex-  that  which  fully  indemnities  the  creditor." 
pound  the  rules  of  law  as  they  appear  to  me  Ryder  v.  Thayer,  3  La.  Ann.  R.  149. 
to  exist.  Louisiana  is  the  only  State,  I  believe,  in  the 

1  The  case  of  Jones  v.  Steamship  Cortes,  17  Cal.  487,  was  an  action  brought  in  the  Supreme 
Court  of  California  for  damages  for  the  wrongful  breach  of  a  contract  to  trans]iort  a  female 
passenger,  one  of  the  plaintiffs,  from  San  Francisco  to  San  Juan  del  Sur,  in  Nicaragua.  The 
plaintiffs  proved  that  on  the  arrival  of  the  steamer  at  San  Juan  she  was  not  permitted  to  land, 
but  was  taken  to  Panama  against  her  will,  and  there  landed  in  an  unhealthy  country  ;  and 
after  a  detention  in  a  destitute  condition  for  ten  days,  there  being  no  direct  connnunication 
between  San  Juan  and  Panama,  was  compelled  to  return  to  New  York  in  order  to  start  afresh 
for  Nicaragua.  The  court  held  that  the  whole  case  should  go  to  the  jury  ;  that  the  plaintiffs, 
inid'ir  the  California  Code  of  Procedure,  which  permitted  all  matters  forming  jtart  of  one  trans- 
duction to  be  united  in  the  same  suit,  could  recover  not  only  the  pecuniary  loss  directly  resulting 


CH. 


V,I.] 


MOTIVE    WHEN    INQUIRED    INTO. 


227 


Vendor  of  Real  Estate  Refusing  to  Convey.  —  To  this 
geneial  rule,  however,  there  undoubtedly  exists  an  inipor-  [209] 
tant  exception,  which  has  been  introduced  from  the  civil 


Union  where  an  effort  has  been  made  to  re- 
duce tlie  subject  of  dania<ies  to  statutory 
limits.  I  annex  here  the  ])rovisions  of  tiieir 
Code  on  the  suhjict.  It  will  be  seen  that,  in 
all  cases  exce})t  eoiitraets  for  the  paynuiit  of 
money,  wliere  the  crechtor  can  recover  inter- 
est oijly,  a  distinction  is  recof;niz.ctI  between 
the  breach  of  contracts  arisinj:;  from  inca- 
pacity and  tiiat  caused  by  bad  faith  or  evil 
desi<,fn. 

Art.  1928.  Where  the  object  of  the  con- 
tract is  anything  but  the  payment  of  money, 
the  damages  due  to  the  creditor  for  its  breach 
are  the  amount' of  tlie  loss  he  has  sustained, 
and  tlie  profit  of  which  he  has  been  deprived, 
under  the  following  exceptions  and  moditi- 
cations :  — 

1.  When  the  debtor  has  been  guilty  of  no 
fraud  or  bad  faith,  he  is  liable  only  for  such 
damages  as  were  contemplated,  or  may  reason- 
ably be  supposed  to  have  entered  into  the 
contemjilation  of  the  parties,  at  the  time  of 
the  coiitr;ict.  By  bad  faith  in  this  and  the 
next  rule  is  not  meant  the  mere  breach  of 
fiiitii  in  not  complying  with  the  contract,  but 
a  designed  breach  of  it  from  some  motive  of 
interest  or  ill-will. 

2.  When  the  inexecution  of  the  contract 
has  proceeded  from  fraud  or  bad  faith,  the 
debtor  shall  not  only  be  liable  to  such  dam- 
ages as  were  or  might  have  been  foreseen  at 
the  time  of  making  the  contract,  but  also  to 
sucii  as  are  the  immediate  and  direct  conse- 
quence of  the  breach  of  that  contract;  but 
even  when  there  is  fraud,  the  damages  cannot 
exceed  this. 

3.  Although  the  general  rule  is  that  dam- 
ages ai"e  tiie  amount  of  the  loss  the  creditor 
has  sustained,  or  of  the  gain  of  which  he  has 
been  deprived,  yet  there  are  cases  in  which 
damages  may  be  assessed  Avithout  calculating 


altogether  on  the  pecuniary  loss,  or  the  priva- 
tion of  jiccuniary  gain  to  the  party.  Where 
tlie  contract  has  lor  its  object  the  gratification 
of  some  intellectual  enjoyment,  whether  in 
religion,  morality,  or  taste,  or  some  conven- 
ience, or  other  legal  gratification,  although 
these  are  not  a])preciated  in  money  by  the 
parties,  yet  damages  are  due  for  tlieir  breacli ; 
a  contract  for  a  religious  or  charitable  founda- 
tion, a  promise  of  marriage,  or  an  engage- 
ment for  a  work  of  some  of  the  tine  arts,  are 
objects  and  examples  of  this  rule.  In  the 
assessment  of  damages  under  this  rule,  as 
well  as  in  cases  of  offenses,  qiuisi  offenses,  and 
quasi  contracts,  much  discretion  must  be  left 
to  the  judge  or  jury,  while  in  other  eases  they 
have  none,  but  are  bound  to  give  such  dam- 
ages under  the  above  rules  as  will  fully  in- 
demnify the  creditor,  whenever  the  contract 
has  been  broken  by  the  fault,  negligence, 
fraud,  or  bad  faith  of  the  debtor. 

4.  If  the  creditor  be  guilty  of  any  bad 
faith  which  retards  or  prevents  the  execution 
of  the  contract,  or  if,  at  the  time  of  making 
it,  he  knew  of  any  facts  that  must  prevent  or 
delay  its  performance,  and  concealed  them 
from  the  debtor,  he  is  not  entitled  to  dam- 
ages. 

5.  Where  the  parties,  by  their  contract, 
have  determined  the  sum  that  shall  be  paid 
as  damages  for  its  breach,  the  creditor  must 
recover  that  sum,  but  is  not  entitled  to  more. 
But  when  the  contract  is  not  executed  in  part, 
the  damages  agreed  on  by  the  parties  may  be 
reduced  to  the  loss  really  suffered,  and  the 
gain  of  which  the  i^arty  has  been  deprived ; 
unless  there  has  been  an  express  agreement 
that  the  sum  fixed  by  the  contract  shall  be 
paid,  even  on  a  partial  breach  of  the  agree- 
ment. And  see  Arrowsmith  v.  Gordon,  3  La. 
Ann.  R.  105  ;  Porter  v.  Barrow,  Ibid.  140. 


from  the  breach  of  the  contract,  but  also  exemplary  damages  for  any  deceit  practiced  by  the 
owners  and  agents  of  the  steamer,  including  damages  for  her  distress  of  mind.  After  quoting 
the  language  of  the  text  and  the  first  paragraph  of  the  author's  note  preceding  note  |,  p.  208, 
the  court  proceeds  as  follows :  "  In  the  present  case,  it  is  not  imjiortant  to  inquire  which  of 
these  opinions  in  relation  to  the  rule  at  common  law  is  correct.  The  injuries  complained  of 
were  of  such  a  character  that  redress  may  undoubtidly  be  obtained  in  some  foim,  and  under 
our  practice  there  is  no  reason  why  the  jilaintiffs  should  be  compelled  to  resort  to  different 
actions  for  the  relief  to  which  the  law  entitles  them.  We  have  but  one  form  of  action,  and 
nothing  more  is  required  than  a  statement  in  ordinary  language  of  the  facts  relied  upon  for  a 
recovery.  The  statute  makes  no  distinction  in  matters  of  form  between  actions  of  contract  and 
those  of  tort,  and  relief  is  administered  without  reference  to  the  technical  and  artificial  rules  of 
the  common  law  upon  this  subject. 

"  Different  causes  of  action  may  be  united  in  the  same  complaint,  and  the  only  restrictions 
u])on  the  pleader  in  this  respect  are  those  imposed  by  the  statute.  Our  system  of  pleading  is 
formetl  upon  the  model  of  the  civil  law,  anil  one  of  its  ])rincijial  objects  is  to  discourage  pro- 
tracted and  vexatious  litigation.  It  is  the  duty  of  the  courts  to  assist  as  far  as  possible  in  the 
acconqilishment  of  this  object,  and  it  should  not  be  frittered  away  by  the  application  of  ndcs 
which  have  no  legitimate  connection  with  the  .system.  The  provisions  for  avoiding  a  multi- 
plicity of  suits  are  to  be  liberally  and  beneficially  construed,  and  we  see  no  reason  why  all 
mattei's  arising  from  and  constituting  part  of  the  same  transaction  should  not  be  litigated  and 
determined  in  the  same  action.     Causes  of  complaint  differing  in  their  nature,  and  having  no 


228  CONTRACTS.  [CH.    VII. 

law,  in  regard  to  damages  recoverable  against  a  vendor  of  real 
estate  who  fails  to  perform  and  convey  the  title.  In  these  cases 
the  line  has  been  repeatedly  drawn  between  parties  acting  in 
good  faith,  and  failing  to  perform  because  they  could  not  make 
a  title,  and  parties  whose  conduct  is  tainted  with  fraud  or  bad 
faith.  In  the  former  case,  the  plaintiff  can  only  recover  what- 
ever money  hiis  been  paid  by  him,  with  interest  and  expenses.^ 

In  the  latter,  he  is  entitled  to  damages  resulting  I'rom  the 
[210]  loss  of  his  bargain.*^     This  exception  cannot,  1  think,  be 

justified  or  explained  on  principle,  but  it  is  well  settled  in 
practice.^ 

Breach  of  Promise.  —  To  the  general  rule  another  exception 
also  exists,  that  of  breach  of  promise  of  marriage.  In  this 
action,  though  in  form  ex  contractu,  yet  it  being  impossible  from 
the  nature  of  the  case  to  fix  any  rule  or  measure  of  damages,  the 
jury  are  allowed  to  take  into  their  consideration  all  the  circum- 
stances ;  and,  provided  their  conduct  is  not  marked  by  prejudice, 

*  Flureau  v.  Thornhill,  2  W.  BI.  1078 ;  Rohinson  v.  Harman,  1  Excli.  850  ;  Bitner 
Hopkins   v.    Grazebrook,  6   B.   &   Cres.    31;     i;.  Brougli,  11  Penn.  R.  127,  andart/e,  69,  184. 

connection  with  each  other,  cannot  be  united ;  but  the  object  of  this  rule  is  to  prevent  the 
confusion  and  embarrassment  which  would  necessarily  result  from  the  union  of  diverse  and 
incongruous  matters,  and  it  has  no  application  to  a  case  embracing  a  variety  of  circumstances 
so  connected  as  to  constitute  but  one  transaction.  The  statute  provides  that  a  claim  for  inju- 
ries to  the  jKTson  shall  not  be  joined  with  a  claim  fur  injuries  to  character. 

"  In  a  case  in  New  York  involving  the  construction  of  a  similar  provision  in  the  code  of  that 
State,  it  was  held  that  a  demurrer  to  tlie  complaint,  the  facts  stated  being  sufficient  to  sustain 
an  action  either  for  assault  and  battery  or  for  slander,  was  not  well  taken.  The  court  said  : 
'  The  complaint  in  fact  contains  but  a  single  cause  of  action ;  the  allegations  relate  to  a  single 
transaction  ;  the  complaint  purports  to  give  the  history  of  one  occurrence  and  no  more.  This 
history  embraces  what  was  done  and  what  was  said  on  the  occasion  ;  each  constitutes  a  part  of 
the  res  gestce  ;  what  is  alleged  to  have  been  done  would,  if  established  upon  the  trial,  sustain  an 
action  for  personal  injury  ;  what  is  alleged  to  have  been  sa^d  would,  if  established  upon  the 
trial,  sustain  an  action  for  injury  to  the  reputation.  The  whole  together,  constituting  as  it 
docs  but  a  single  transaction,  makes  but  a  single  cause  of  action.  The  plaintiff  brings  his 
action  xipon  the  whole  case  to  recover  damages  for  the  compound  injuries  he  has  sustained. 
....  When  it  comes  to  trial,  all  that  was  said  and  all  that  was  done  become  the  proper  sub- 
jects of  investigation,  and  a  single  verdict  adjusts  the  rights  of  the  parties.'  Brewer  v.  Temple, 
15  How.  Pr.  286.  In  Robinson  v.  Flint,  16  How.  Pr.  240,  a  cause  of  action  in  tort  was  united 
with  a  cause  of  action  on  contract,  and  it  appearing  that  these  causes  of  action  arose  out  of  the 
same  matter,  it  was  held  that  they  were  properly  united. 

"  The  Code  contains  a  special  provision  upon  this  subject,  but  we  think  that  the  effect  of  our 
statute  is  the  same,  and  that  the  construction  would  not  be  altered  by  the  incorporation  of  a 
similar  provision. 

"  Having  adopted  a  system  which  rejects  all  distinctions  in  matters  of  form,  it  would  be  folly 
to  subject  it  to  the  operation  of  rules  founded  ujjon  distinctions  of  this  nature.  Every  action 
under  our  practice  may  be  properly  termed  an  action  on  the  case,  and  it  would  seem  that  any 
ground  of  relief  which  can  be  regarded  as  a  part  of  the  case  may  with  propriety  be  included  in 
the  action." 

1  Where  it  was  made  the  duty  of  a  town  by  statute  to  make  good  to  a  purchaser  of  land 
at  a  tax  sale  all  damages  by  reason  of  the  collector's  neglect,  in  an  action  on  the  case  by  the 
purchaser  against  the  town  to  recover  damages  for  such  neglect,  the  measure  was  held  to  be,  not 
the  value  of  the  land,  but  the  amount  paid  and  interest.  Saulters  v.  the  Town  of  Victory,  35 
Vt.  351. 

2  Ponnsett  v.  Fuller,  17  C.  B.  660. 

'  See  Sweem  v.  Steele,  5  Iowa,  352  ;  cited  ante,  186 ;  Lawrence  v.  Chase,  54  Me.  196. 


CH.    VII.]  COMPENSATION   THE    CONTROLLING    PRINCIPLE.  229 

passion,  or  corruption,  they  are  permitted  to  exercise  an  absolute 
discretion  over  the  amount  of  compensation.  "  The  damages  in 
this  action,"  sa3^s  the  Supreme  Court  of  New  York,*  "  rest  in  the 
sound  discretion  of  the  jury,  under  the  circumstances  of  each 
particular  case."  f  And  this  exception  is  perhaps  one  of  the 
strongest  proofs  of  the  general  rule. 

Compensation  for  Actual  Loss  the  Controlling  Principle. — 
But  when  it  is  said  that  the  contract  furnishes  the  measure  of 
damages,  it  is  not  thereby  meant  that  the  party  ready  to  per- 
form his  contract  will  be  able  to  recover  of  the  party  in  default 
the  entire  pi'ice  named  in  the  agreement.  On  the  contrary,  it  has 
been  held  in  many  cases,  that  in  actions  for  breach  of  contract 
the  measure  of  damages  is  not  the  price  stipulated  to  be  paid  on 
full  performance,  but  the  actual  injury  sustained  in  consequence 
of  the  defendant's  default.^  For  the  rule  that  the  contract 
furnishes  the  measure  of  damages,  is  subject  to  the  other  rule 
already  stated,  that  compensation  is  only  to  be  given  for  actual 
loss.^ 

So  on  a  contract  to  transport  horses  in  a  canal-boat  for  a  given 
sum  of  money,  the  plaintiffs  averred  a  readiness  and  offer  to  per- 
form on  their  part,  and  a  neglect  and  refusal  on  the  part  of  the 
defendants  to  furnish  the  freight,  and  claimed  to  recover  the 
entire  sum  specified  in  the  agreement.  But  the  Supreme  Court 
of  New  York  held  that  they  were  only  entitled  to  recover  what 
they  had  actually  lost  by  the  defendants'  non-performance, 
saying,  "  Suppose  the  plaintiffs  had  the  next  hour  been  furnished 
with  freight  entirely  adequate  to  the  voyage  at  the  same 
sum,  they  then  would  have  been  entitled  to  the  damage  [211] 
arising  from  detention  for  that  time,  but  no  more.  A 
tender  and  offer  to  perform  is  equivalent  to  performance,  but 
merely  for  the  purpose  of  sustaining  an  action ;  it  is  not  per- 
formance, though  in  one  respect  it  resembles  it  consequentially. 
It  is  quasi  'performance,  but  it  does  not  regulate  the  amount  of 
damages.t 

*  Southard  v.  Rexford,  6  Cowen,  254.  J  Shannon  v.  Comstock,  21  Wend.  457.    It 

t  Torre  r.  Summers,  2  Nott  &  M'C.  267  ;  is   difficult    to   reconcile  this   reasoning  with 

Coryell  i;.  Colhaugh,  Coxe,  77  ;  Stout  v.  Parll,  that  which  allows  the  vendor,  in  cases  of  con- 

Coxe,  79  ;  Greene  v.  Spencer,  3  Mo.  225  ;  Hill  tract  for  the  sale  of  land,  to  recover  the  full 

V.  Maupin  3  Mo.  323.  price. 

1  Jones  I'.  Van  Patten,  3  Ind.  107.  As  has  been  already  observed  {supra,  93,  94),  it  is  not 
only  the  moral  but  the  legal  duty  of  a  party  who  seeks  redress  for  another's  wrong  to  use  due 
diligence  in  preventing  loss  thereby.  This  principle  applies  to  a  breach  of  contract,  and  a  party 
is  not  entitled  to  compensation  for  injurious  consequences  from  such  breach,  so  far  as  he  had 
the  information,  time,  and  opportunity  necessary  to  prevent  them.  See  The  Cincinnati  and 
Chicago  Air  Line  R.  R.  Co.  v.  Rodgcrs,  24  Ind."l03. 

^  Robinson  v.  Varnell,  16  Texas,  382. 


230  CONTRACTS.  [ciI.    VII. 

So,  also,  in  Kentucky  it  has  been  held,  that  a  plaintiff  con- 
tracting to  do  woi'k  for  a  stipulated  price,  and  -who  is  ready  to 
perform  his  agreement,  but  is  prevented  by  the  other  party,  can- 
not recover  the  price  named  in  the  contract  for  the  whole  work, 
but  only  the  actual  damages  sustained  by  him.  And  as  "  the 
amount  of  compensation  which  the  plaintiffs  had  recovered 
exceeded  the  value  of  the  work  they  had  done,  and  as,  moreover, 
they  did  not  attempt  to  prove  any  special  loss  or  damage,  they 
were  held  not  entitled  to  recover  anything."  *  ^ 

So,  also,  in  New  York,  where  the  defendant  agreed  with  the 
plaintiff,  a  boarding-house  keeper,  for  rooms  and  board  for  a  year 
at  a  stipulated  price,  and  quitted  them  within  the  time,  it  was 
held  that  if  the  plaintiff  was  entitled  to  recover  at  all,  the  meas- 
ure of  damages  would  not  be  the  price  stipulated  to  be  paid,  but 
only  such  damages  as  had  resulted  from  the  defendant's  breach 
of  contract.  And  Bronson,  J.,  said,  "If  the  plaintiff  could  re- 
cover, she  was  not  entitled  as  a  matter  of  course  to  the  stipu- 
lated price  for  the  use  of  the  rooms  to  the  end  of  the  year,  but 
only  to  such  damages  as  had  directly  and  necessarily  resulted 
from  the  breach  of  the  contract.  She  could  not  refuse  the 
rooms  to  other  lodgers,  leaving  them  idle,  and  then  recover 
against  the  defendant  as  for  use  and  occupation.  Although  a 
party  be  chargeable  with  a  breach  of  contract,  the  other  party 
has  no  riarht  to  conduct  in  such  a  manner  as  to  make  the  dam- 
ages  unnecessarily  burdensome."^  But  the  plaintiff  was  held 
not  entitled  to  anything,  on  the  ground  of  the  contract  being 
within  the  statute  of  frauds.! 

So,  again,  in  the  same  State,  where  the  plaintiff  was 
[212]  employed  by  the  defendant  to  do  certain  work ;  after  he 
began  to  do  it,  the  order  was  countermanded  by  the  de- 
fendant ;  but  the  plaintiff  went  on  to  complete  the  job,  and  in- 
sisted that  he  was  entitled  to  recover  for  doing  the  whole  and 
for  the  materials  furnished,  and  so  the  Common  Pleas  held. 
But  on  error,  the  judgment  was  reversed ;  the  court  saying, 
"  That  in  all  such  cases  the  just  claims  of  the  party  employed 
are  satisfied  when  he  is  fully  compensated  for  his  part  perform- 

*  Chamlierlain  v.  McCallister,  6  Dana's  Ivy.  t  Wilson  v.  Martin,  1  Denio,  602.  See  to 
Reports,  352.  See  also,  Caldwell  v.  Heed,  same  point,  Spencer  v.  Halstead,  1  Denio, 
Littell's  Select  Cases,  366.  606. 

1  The  same  rnle  applies  where  the  consideration  is  paid  by  the  employer  in  advance.  The 
mechanic  is  not  entitled  in  such  case  to  retain  the  full  price,  even  if  the  work  is  stopjjcd  by  the 
default  of  his  employer,  but  so  much  onh'  as  will  compensate  his  actual  damage.  Hood  v. 
Raines,  19  Texas,  400. 

2  In  such  a  case  it  appears  the  burden  is  on  the  defendant  to  prove  the  plaintitf  had  an 
opportunity  of  renting  the  rooms.     See  Greene  v.  Waggoner,  2  Hilt.  297. 


! 


CII.    VII.]  OPPRESSIVE   CONTRACTS.  231 

ance  and  indemnified  for  his  loss  in  respect  to  the  part  left  nn- 
finished ;  and  to  persist  in  accumulating  a  larger  demand  is  not 
consistent  with  good  faith  towards  his  employer.*'  -^ 

So,  again,  where  a  party  was  employed  as  the  superintendent 
of  a  railroad  for  a  certain  time  at  a  specified  compensation,  and 
was  dismissed  without  cause.  He  was  held  prima  facie  entitled 
to  recover  for  the  whole  time  ;  but  that  the  defendants  might 
show  in  diminution  of  damages  that  after  the  plaintifi'  had 
been  dismissed  he  had  eno-aored  in  other  business.!  ^ 

Unconscionable  Agreements.  —  There  is  a  class  of  decisions 
which  may  at  first  sight  appear  to  be  opposed  to  the  general 
rule,  that  the  contract  furnishes  the  measure  of  damages.  In 
an  early  case,  brought  on  an  assumj)sit  to  pay  for  a  horse  a  bar- 
ley-corn a  nail,  doubling  it  every  nail,  with  an  averment  that 
there  w^ere  thirty-two  nails  in  the  shoes  of  the  horse,  which, 
being  so  doubled  every  nail,  came  to  five  hundred  quarters  of 
barley,  —  the  judge,  who  tried  the  cause,  directed  the  jury  to 
disregard  the  contract,  and  to  give  the  value  of  the 
horse  in  damages,  wdiich  was  £8,  and  so  they  did.t  The  [213] 
principle  of  this  decision  is,  that  if  the  agreement  be 

*  Clark  V.  Marsijrlia,  1  Denio,  317;  and  see  thoug-h  the  contract  was  a  foolish  one,  it  would 

Durkee  v.  Mott,  8  Barb.  423.  hold  in  law,  and  the  defendant  ought  to  pay 

t  Cosiigan  v.  Mohawk  «&  H.  R.  R.  2   Denio,  something  for  his  folly  ;  "  whereupon,  the  re- 

610;    and  see  also,  Hecksher  v.  McCrea,  24  porter  adds,  "The  counsel  for  the  defendant 

Wend.  304 ;  and  in  Arkansas,  compare  also  perceiving   the   opinion    of    the  court    to   he 

Walworth,  v.  Foul,  4  English,  394.  against  his  client,  offered  the  plaintiff  his  half 

X  James  v.  Morgan,  1  Levinz,  111.     In  an-  crown  and  his  costs,  which  was  accepted  of; 

other  case,  a  somewhat  similar  contract  came  and  so  no  judgment  was  given  in  the  case." 

up  on  demurrer.     The  plaintiff  declared,  on  A  question  arose  on  the  meaning  of  the  con- 

an  agreement,  that  the  defendant,  in  consider-  tract, — the  defendant  insisting  that  ^W/^e^  alio 

ation  of  2s.  6f/.  in  hand  paid,  and  of  £4  17s.  6fZ.  die  Lunce  meant  even/  Monday,  but  Lord  Holt 

to  be  paid  on  performance,  agreed  to  deliver  said  it  must  be  construed  "  everi/  other  Moiidai/." 

two  grains  of  rve  corn,  on  jNIonday,  the  29th  This  made  a  material  difference  in  the  possi- 

of  March,  and  four  grains  on  the  next  Mon-  bility  of  executing  the  contract;  for  if  the 

day,  and  so  doubling  cptolibet  alio  die  Luiue  for  quantity  were  doubled  thirty  times,  it  woidd 

one  year.     The  defendant  demurred,  saying,  have   reached    125   quarters  ;    if    tifty-two,  it 

"  that  the  agreement  appeared,  upon  the  face  would   have  amounted    to   524,288,000   quar- 

of  it,  to  be  impossible,  the  rye  to  be  delivered  ters.       Thornborow    v.    Whiteacre,   2    Lord 

amounting  to  such  a  quantity  as  all  the  rye  in  Raym.  1164. 

the  world  was  not  so  much  ;  and  being  impos-  And  the  principle  of  James  v.  Morgan  was 

sible  was  void,  and   the  defendant  not  bound  approved  of  by  Lord  Chancellor  Hardwicke, 

to  perform  it."     But  after  argument  the  court  in  Earl  of  Chesterfield  v.  Jansen,  1  Wils.  286, 

thought  otherwise,  Powell,  J.,  saying,  "  That  295. 

1  Approved  by  the  Supreme  Court  of  Michigan  in  Hosmer  v.  Wilson,  7  Mich.  294. 

2  King  V.  Steiren,  44  Penn.  99  ;  Hoyt  v.  Wildfire,  3  Johns.  518  ;  Ward  v.  Ames,  9  Johns. 
138  ;  Emerson  i;.  Howland,  1  Mason,  51.  See  Hendrickson  v.  Anderson,  5  Jones  (Law),  N.  C. 
246;  McDaniel  >;.  Parks,  19  Ark.  671;  and  Bagley  v.  Smith,  10  N.  Y.  489;  also  post, 
351.  A  servant  wrongfully  dismissed  should  seek  other  employment  so  as  to  lessen  the  dam- 
ages. Emniens  v.  Eldertoii,  13  C.  B.  495.  But  evidence  that'he  obtained  other  employment 
is  only  admissible  in  mitigation  of  damages.  It  is  not  a  defense.  Armfiekl  v.  Xash,  31  JNIiss. 
361.  And  where  the  servant  obtains  employment,  the  ])resumption  is  he  gets  the  best  wages 
he  can,  unless  it  be  proved  he  accepted  less  than  he  might  have  had.  Hunt  v.  Crane,  33  Miss. 
(4  George)  669. 


232  CONTRACTS.  [CH.    VII. 

unconscionable,  the  court  will  render  such  damages  as  may 
appear  reasonable,  without  being  bound  by  the  terms  of  the 
contract.^  So  in  Massachusetts,  where  a  note  had  been  given 
to  stay  execution  payable  in  oats  at  20  cents  per  bushel,  when 
in  fact  they  were  worth  37  cents,  it  was  held  that  the  jury 
might  disregard  the  contract  on  the  ground  that  it  was  uncon- 
scionable, and  fix  the  value  of  the  oats  at  20  cents.*  So  a 
standard  text  writer  tells  us  that,  "  on  an  action  brought  on  a 
promise  of  £1,000  if  the  plaintiff  should  find  the  defendant's 
owl,  the  court  declared,  though  the  promise  was  proved,  that  the 
jury  might  mitigate  the  damages.!  But  in  truth  the  assertion 
of  the  right  to  sever  the  contract,  to  declare  a  part  of  it  un- 
conscionable and  oppressive,  and  to  decree  performance  of  the 
remainder,  is  the  exercise  of  an  equitable  power  of  a  high 
order,  the  incautious  exercise  of  which  might  lead  to  very  dan- 
gerous results.  And  the  decisions  just  cited  would,  I  think,  be 
more  properly  brought  within  the  rule  which  governs  cases  of 
fraud  and  oppression.  If  the  contract  is  on  its  face  so  extor- 
tionate and  unjust  as  to  bear  evident  marks  of  deceit,  then, 
instead  of  wasting  time  in  trying  to  reduce  the  relief  to  the 
standard  of  strict  justice,  the  whole  agreement  should  be  pro- 
nounced void. 

Mere  Inadequacy  of  Consideration  does  not  Defeat  Contract. 
In  connection  with  this  branch  of  the  subject,  it  is  to  be  ob- 
served that  mere  inadequacy  of  consideration  is  no  objection  to 
a  contract.  Some  consideration  is  requisite,  but  the  sufficiency 
of  the  consideration  cannot  be  inquired  into.  So  in  an  early 
case,t  where  the  defendant  agreed,  if  the  plaintiff  would  show 
him  a  certain  lease,  that  he,  the  defendant,  would  pay  the  part 
due  on  it  by  a  third  party,  it  was  objected   that  there  was  no 

*  Cutler  V.  How,  8  Mass.  257 ;    Cutler  v.  ceived,   which  is    an    equitable    action,   and 

Johnson,  8  Mass.  266  ;  and  Baxter  v.  Wales,  founded  on  conscience,  recover  an  unconscion- 

12  Mass.  365  ;  Leland  ?;.  Stone,  10  Mass.  459.  able,  exorbitant  demand?      Most  clearly  he 

And   Lord  Mansfield   used  analo<j;ous  Ian-  shall  not."     Jestons  u.  Brooke,  2   Cowp.  793; 

guage  in  regard  to  the  action  for  money  had  and  Floyer  v.  Edwards,  1  Cowp.  112. 

and  received.     "  Shall  a  man,"  said  his  Lord-  t  Bacon  Abr.  Damages  D. 

ship,   "  in  an  action  for  money  had  and  re-  J  Sturlyn  v.  Albany,  Cro.  Eliz.  67. 

1  The  defendants  being  engaged  in  a  flour  commission  business,  hired  from  the  plaintiff  for 
one  night  a  canvas  cover,  fifty  feet  in  length  by  twenty-five  feet  wide,  to  be  spread  over  flour 
on  board  a  canal  boat,  lying  at  a  wharf  in  the  city  of  New  York.  The  price  to  be  paid  for 
the  use  of  the  canvas  was  the  "  customary  charge,"  which  for  twenty-four  hours  or  less  was 
proved  to  be  one  dollar.  Through  some  oversight  the  cover  was  not  returned  until  the  lapse 
of  about  five  weeks.  The  action  was  brought  for  the  use  of  the  canvas  during  the  whole  period 
last-mentioned.  The  plaintiff  insisted  upon  a  recovery  of  one  dollar  for  each  day  of  the 
detention.  Held,  that  defendants  were  not  liable  to  be  charged  at  the  contract  rate  per  day 
for  every  day  during  which  the  canvas  was  detained.  The  recovery  should  be  limited  to  the 
value  of  the  use  for  the  entire  period  of  the  detention.  Russell  v.  Roberts,  3  E.  D.  Smith's 
(N.  Y.)  C.  P.  R.  318. 


CH.    VII.]  ACTION    FOR    RENT.  233 

consideration.  "Bnt  it  was  adjudged  for  the  plaintiff;  for  when 
a  thing  is  to  be  done  by  the  plaintiff,  be  it  never  so  small,  this  is 
sufficient  consideration  to  ground  an  action."  So  it  has  been 
contended  that  a  guarantor  of  negotiable  paper  receiving  a  trifling 
percentage  for  his  guaranty,  could  not  be  held  liable  for  the 
whole  face  of  the  paper ;  but  on  the  same  ground  he  was  held 
liable ;  *  and  the  rule  has  been  repeatedly  declared,  that  the 
value  of  the  services  or  the  amount  of  the  consideration  is  of 
no  importance,  where  a  stipulated  sum  is  agreed  to  be  paid  for 
the  performance  of  a  specific  service.!  It  is  only  wdiere  fraud, 
mistake,  illegality,  or  oppression  intervenes,  that  the  considera- 
tion can,  in  this  resjDCct,  be  inquired  into. 

By  American  Rule  Contract  Price  Recoverable.  —  The  rule 
that  the  contract  fin^nishes  the  measure  of  damages,  is  also  sub- 
ject to  further  remark.  As  a  general  principle,  it  is  the  actual 
loss  alone  for  which  the  common  law  seeks  to  give  compensa- 
tion ;  but  in  regard  to  contracts  for  the  sale  of  land  we 
have  already  seen,$  and  in  regard  to  contracts  for  the  [214] 
sale  of  chattels  we  shall  hereafter  see,  that  in  this  coun- 
try, if  the  vendor  tenders  complete  performance  on  his  part,  he 
is  at  liberty  to  recover,  not  merely  what  he  loses  by  the  non- 
performance of  the  vendee,  but  the  entire  contract  price  ;  while 
in  England,  on  the  other  hand,  the  vendor  of  land  is  limited  to 
compensation  for  such  actual  injury  as  may  have  resulted  from 
the  breach  of  the  agreement.  The  American  rule  attributes  to 
the  common-law  courts  the  exercise  of  the  equitable  power  of 
compelling  specific  performance,  as  to  the  vendor,  while  at  the 
same  time  the  tribunal  is  incapable  of  enforcing  either  a  trans- 
fer or  a  conveyance.§ 

Action  for  Rent.  —  Another  apparent  exception  to  the  gen- 
eral rule  has  been  made  in  the  action  of  assumpsit  for  rent.  So 
in  England,  in  a  suit  for  use  and  occupation  where  an  agree- 
ment of  hiring  had  been  made  at  £450,  with  a  right  of  sporting, 
and  of  occupation  of  the  glebe,  it  was  shown  that  the  plaintiff, 
the   landlord,  had  no   power  to  grant  the  privilege  of  sporting, 

*  Oakley  v.  Boomian,  21  Wend.  588.  entertain  no  doubt  whatever,  that  it  is  most 
t  Trustees  of  Hamilton  College  v.  Stewart,  desirable  to  mould  and  blend  together  the  two 
1  Comstock,  581.  jurisdictions  of   law   and  chancery,  so  as   to 
X  Supra,  190.  enable  one  tribunal  to  have  complete  cogni- 
§  In    this,  as  in  many  other  cases,  we  shall  zance  of  the  entire  cause  and  all  its  incidents, 
perceive  in  this  country  a  gradual  inclination  But  as  long  as  the  jurisdictions  are  kept  dis- 
to  attribute  chancery  powers  to  the  courts  of  tinct,  I  am  not  inclined  to  believe  that  the  ad- 
law,  and  to  approach  the  system  of  equitable  ministration  of  justice  will  be  benefited  by  any 
relief.      It   may   be   questioned   whether   this  confusion  of  their  remedies, 
mode  of  altering  our  system  is  judicious.     I 


234  CONTRACTS.  [cil.    VII. 

and  that  he  also  failed  in  procuring  the  glebe  for  the  defendant's 
occupation.  On  this  state  of  facts  it  was  held  by  the  English 
Common  Pleas,  "  That  an  eviction  of  part  of  the- ji remises  being 
shown,  the  jury  was  to  ascertain,  independenihj  of  ang  agreement^ 
what  the  defendant  ought  to  pay."*  I  should  be  inclined,  how- 
ever, to  doubt  the  accuracy  of  this  language  ;  the  jury  are,  it  is 
true,  not  to  be  absolutely  bound  by  the  agreement :  but  they 
cannot,  I  should  suppose,  act  independently  of  it.  The  proper 
course  would  be  to  assume  the  agreed  rent  as  the  fair  value  of 
the  entire  premises,  and  on  that  basis  to  make  a  proper  deduc- 
tion for  the  portion  which  the  tenant  had  not  enjoyed  ;  and 
this  seems  to  be  in  analogy  with  the  class  of  cases  which  we 
shall  next  consider. 

Part  Performance.  —  Wherever  a  contract  is  indivis- 
[215]  ible,  but  one  action  can  be  brought  for  damages  result- 
ing from  its  non-performance ;  f  but  it  often  becomes  a 
question,  how  far  a  contract  is  to  be  treated  as  entire.  And  a 
modification  of  the  general  rule  which  makes  the  agreement 
control  the  amount  of  damages,  is  also  to  be  found  in  that  class 
of  cases  where  the  contract  is  on  its  face  an  entire  one,  and 
having  been  performed  only  in  part,  compensation  is  sought  for 
what  has  been  actually  done.^  Such  are  cases  of  agreements 
to  work  for  a  specified  time  for  a  given  sum,  where  the  party 
employed  quits  his  employment  without  the  consent  of  the 
other,  and  before  the  period  fixed ;  agreements  to  deliver  a 
certain  quantity  of  goods,  and  delivery  of  only  a  part ;  agree- 
ments to  do  work,  as  building  for  instance,  according  to  certain 
specifications,  wdiere  the  work  is  done  but  the  specifications  are 
departed  from ;  whether  in  these  cases  the  party  failing  to  per- 
form his  agreement  strictly  has  any  redress  whatever,  and  to 

«  Tomlinson  v.  Day,  2  Brod.  &  Bing.  680.  t  Campbell   v.    Gates,    10   Penn.  State  E. 

483. 

1  Where  work  is  to  be  done  within  a  certain  time,  the  employee  by  allowin.t^  it  to  po  on 
after  the  time  has  expired,  waives  his  rii^lit  to  rescind  on  that  account,  and  can  only  claim 
such  damajics  from  the  employer  as  he  may  have  sustained  ])y  the  delay.  Sinclair  v.  Tall- 
madge,  35  Barb.  602.  But  other  objections  are  not  thereby  waived.  Nibbc  v.  Brauhn,  24  111. 
268. 

Where  work  is  completed,  though  not  within  the  agreed  time,  there  may  be  a  recovery  in 
indehitains  assumpsit  for  its  value.  The  special  contract  will  furnish  a  rule  to  measure  the  dam- 
ages.    So  far  as  performance  is  defective  in  time,  it  admits  of  compensation. 

Where  there  was  delay  in  completing  a  steamboat  within  the  time,  the  measure  of  damages 
was  not  what  it  would  cost  the  party  to  hire  another  boat  for. the  time,  but  what  would  l)e  the 
ordinary  hire  of  such  a  boat ;  and  in  case  of  defective  work,  what  would  be  the  cost  of  rcjiairs 
and  the  ordinary  hire  of  a  boat  during  the  time  necessary  to  make  them.  Brown  v.  Foster,  51 
Penn.  St.  165. 

When  a  ]iarty  is  bound  by  contract  to  perform  a  certain  work,  the  agreement  will  be  pre- 
sumed to  contemplate,  unless  the  contrary  is  expressed,  that  if  any  jjart  is  to  be  omitted,  there 
shall  be  a  pro  rata  deduction.    Holmes  v.  Stummel,  17  111.  455. 


CH.    VII.]  PART    TERFORALVNCE.  235 

what  extent,  is  a  very  delicate  and  much-vexed  question/  which 
perhaps  more  properly  belongs  to  the  subject  of  the  right  of 
action  than  that  of  the  measure  of  damages.  The  better  and 
sounder  rule  would  seem  to  be,  that  unless  there  is  a  waiver  of 
the  privileged  performance,  or  an  acceptance  of  the  par- 
tial performance,  there  can  be  no  recovery.*^     In  cases  [216] 

*  It  may  not  be  improper,  by  way  of  elu-  ployed  has  a  right  to  exact  the  entire  amount 

cidatinji'  tile  text,   to  take  notice  of  some  of  of   his  wages.     This,  however,  is  snl)iect  to 

the  leading  cases.     The  general  principle  es-  the  right  to  reconp  what  the  plaintiff  could 

tablished    by    the    earlier    decisions    is,    that  reasonably  have  earned  duriiig  the  time  cov- 

where   the    contract    is    entire,   as   where   A  ered  by  the  remainder  of  the  contract.     But 

agrees  to  do  a  certain  thing  for  which  B  is  to  we   are   now  speaking   of  the   relief  claimed 

make  a  certain  c()ni]>ensation,  the  doing  of  the  where  the  party  employed  has  not  performed 

thing   by  A  is   a   condition   ])reccdent,  and  he  his  agreement. 

has  no  remedy  until  he  has  fully  performed         So  in  England,  where  a  master  had  given  a 

his  part.  mate    a   note,  promising    to   pay  him    thirty 

It  has   been  held  in  some  cases  that  where  guineas,  "provided  he  proceeded.,  rimtlnued,  and 

the  party  employing  another  puts  an  end  to  did  his  duty  as  mate,"  etc.,  on  a  certain  voyage  to 

the  contract  without  just  cause,  the  party  em-  Liverpool,  and  the  mate  died  during  the  voy- 

1  On  a  failure  to  perform  a  contract  let  out  by  the  county  to  the  lowest  bidder,  who  took  it 
at  much  less  than  a  fair  compensation,  the  county  again  advertised  and  relet  it.  On  a  suit 
against  the  first  bidder  and  his  sureties,  it  was  held,  that  the  measure  of  damages  was  not  the 
ditfcrence  between  the  prices  at  which  the  contract  was  let,  Init  the  actual  damage  to  the  county 
by  reason  of  the  fivilure  to  perform  the  first  contract.  Chambers  v.  Fort  Bend  County,  14 
Texas,  34. 

In  an  action  for  the  breach  of  a  contract  for  work  and  labor  to  be  done  upon  a  farm,  evi- 
dence of  damage  occurring  to  the  plaintiff's  crops  in  consequence  of  the  defendant's  leaving 
his  service,  is  inadmissible.  The  legal  measure  of  damages,  in  such  cases,  is  the  difference 
between  the  wages  agreed  to  be  paid  to  the  defeiulant,  and  the  price  the  plaintiff  was  obliged 
to  pay  lor  labor  to  supply  his  place.     Peters  v.  Whitney,  2.3  Barb.  (N.  Y.)  24. 

In  an  action  to  recover  damages  for  the  defective  execution  of  a  contract  to  constrnct  and  put 
up  machinery  in  a  flouring  mill,  in  a  well-finished  and  workmanlike  manner,  and  of  sufficient 
size  and  strength  to  correspond  with  the  cylinders,  the  proper  measure  of  damages  is  the  dif- 
ference between  the  value  of  the  machinery  actually  put  up,  and  that  agreed  to  be  constructed. 
In  such  an  action  the  plaintitl"  is  entitled  to  recover,  in  case  the  jury  find  that  the  machinery 
was  not  properly  constructed,  such  sum  as  will  be  sufficient  to  put  the  same  in  the  condition 
contemplated  by  the  contract;  also  such  sum  as  the  mill  would  have  earned  during  the  time  it 
was  necessarily  delayed  in  consequence  of  the  breakage  or  defects  in  the  machinery,  taking  the 
fair  ordinary  earnings  of  the  mill,  after  deducting  from  the  gross  earnings  the  expense  of 
ininning  the  same,  as  the  net  profits.  So  in  case  the  contract  is  not  performed  in  a  reasonable 
time,  the  jury  are  to  ascertain  how  long  performance  was  uni'easonably  delayed,  and  then  if 
they  rind  the  plaintiff  was  in  a  condition  to  work  his  mill,  by  having  grain  to  grind,  and  is 
prevented  from  griiuling  the  same  hy  such  unreasonable  delay,  the  plaintiff  is  entitled  to  dam- 
ages to  the  gross  amount  of  the  earnings  of  the  mill,  after  deducting  the  expenses  of  the  same. 
Davis  v.  Talcott,  14  Barb.  (N.  Y.)  611.  This  case  was  reversed  in  the  Court  of  Appeals  on  a 
ground  not  touching  the  point  in  question.  12  N.  Y.  184.  To  like  effect  is  Singer  v.  Farns- 
wortli,  2  Ind.  597. 

See  also,  upon  this  subject,  Waters  v.  Towers,  8  Exch,  401 ;  Hughes  v.  Cannon,  1  Sneed, 
622. 

^  And  e  converso,  where  there  is  such  accei)tance  of  partial  performance  in  lieu  of  complete 
performance  of  an  entire  contract  ])y  one  party  to  it,  the  other  being  ready  to  complete  it  on 
his  part,  the  entire  consideration  may  be  recovered.     Ellis  v.  Willard,  9  N.  Y.  529. 

Where  through  the  plaintifl"s  illness,  or  otherwise  through  the  act  of  God  or  of  the  law,  a 
contract  is  not  cora])leted,  a  recovery  can  be  had  for  what  is  done  under  it  to  an  amount  meas- 
ured by  the  value  of  the  service,  but  limited  by  the  terms  of  the  contract.  Wolfe  v.  Howes, 
20  N.  Y.  197 ;  Jones  v.  Judd,  4  N.  Y.  411  ;  Doster  v.  Brown,  25  Geo.  24 ;  Fuller  v.  Brown,  11 
Met.  440. 

But  in  the  case  of  an  entire  executory  contract,  which  the  plaintiff  without  legal  excuse  has 
failed  to  fulfill  on  his  part,  he  can  recover  nothing.  The  courts,  as  a  general  rule,  have  refused 
in  such  case  to  modify  the  contract  of  the  parties,  or  substitute  another  by  sanctioning  a  re- 
covery to  any  extent.  Dermott  v.  Jones,  2  Wallace,  1.  See  Slater  v.  Emerson,  19  How.  (U. 
S.)  224.  Such  is  the  doctrine  of  New  York,  maintaining  with  healthful  vigor  the  necessity  of 
substantially  adhering  to  and  fulfilling  a  fairly  made  contract,  under  penalty  of  the  loss  of  all 


236  CONTRACTS.  [CH.    VII. 

of  this  kind  where  the  plaintiff  is  held  entitled  to  recover 
anything,  the  agreement  of  the  parties,  not  having  been  com- 

£ifi:e,  it  was   held   in   a   suit   bron<>;ht   by  his  neither  upon  the  contract  nor  upon  a  f/iiantum 

adniinistratix,  that  nothino;   could    be   recov-  vctlchaiit,   fur   the   work,  labor,  and  materials, 

ered,  either  on   the  contract  or  on  a  tjudiitnm  Ellis  v.   Ilandin,  3   Taunt.   .')2.     So,  where  A 

meruit.     Cutter's   Adni'x   v.   Powell,  6   T.  R.  undertook    fijr   a    s])ecific    sum    of    money    to 

320.     So   if  a  builder  undertakes   a  work  of  repair  and  wake  perfect  a  friven  article  then  in 

specific  dimensions  and  matcriids,  and  deviates  a  dama;j^ed  state,  and  did  repair  it  in  l)art,  but 

from    the    specifications,   he  cannot  recover,  did  not  make  it  perfect,  it  was  held  that  he 

compensation  for  what  mav  have  been  done  under  it,  however  discouraj^inp  the  circumstances 
attendiuff  its  execution  may  ])rove,  unless  complete  performance  be  voluntarily  waived,  or 
become  impracticable,  rurinuui  v.  Corning,  9  N.  Y.  93  ;  Neville  v.  Frost,  2  E.D.  S.  (N.  Y. 
C.  P.)  62.     See  Chase  v.  Hoijan's  Executors,  Superior  Court  of  N.  Y.  May,  1867. 

In  the  case  of  Smith  v.  Brady,  17  N.  Y.  173,  the  subject  is  fully  discussed,  and  the  principle 
applied  to  the  case  of  a  contract  by  a  builder  to  erect  a  building  (for  which  he  is  to  be  i)aid  on 
its  com])lction)  on  another's  land,  according  to  certain  specifications,  between  which  and  the 
building  as  erected,  there  is  a  substantial  disagreement.  In  such  a  case  the  enforced  occupa- 
tion of  the  building  by  the  owner  is  not  a  waiver  of  the  condition  precedent,  and  although  the 
owner  of  the  land  necessarily  becomes  the  owner  also  of  the  structure  thus  attached  to  his 
freehold,  and  cannot  be  obliged  to  tear  it  down,  he  is  nevertheless  under  no  obligation  to  pay 
for  it. 

See  also,  Bryant  v.  Stillwell,  24  Penn.  314.  The  main  question  in  these  cnses  is  that  dis- 
cussed and  decided  in  Smith  v.  Brady,  i.  e.,  whether,  under  the  circumstances  of  the  particular 
case^  there  has  been  a  voluntary  acceptance  by  the  defendant  of  the  plaintiff's  incom])lete  per- 
formance. Where  such  voluntary  acceptance  is  shown,  the  pro  rata,  recovery  may  be  had,  sub- 
ject to  such  deduction  for  damage  to  the  defendant  as  the  plaintiff's  failure  may  have  occa- 
sioned. Bee  Printing  Co.  v.  Hichboni,  4  Allen  (Mass.),  63.  If  the  acceptance  was  involuntary, 
or  was  compelled  only  by  the  necessity  of  the  case,  or  the  defendant's  wish  to  retain  property 
of  his  own  to  which  the  plaintiff's  work  was  an  incident  or  a  necessary  adjuncf,  there  is  no 
right  of  recovery.  But  in  some  of  the  States  a  laxer  doctrine  prevails.  In  Vermont  the  right 
of  recovery  seems  to  turn,  not  on  the  plaintiff's  voluntary  acceptance,  but  on  the  benefit  sup- 
posed to  be  conferred  by  the  work  done. 

In  the  case  of  Kelly  et  al.  v.  The  Town  of  Bradford,  33  Vt.  3.5,  Aldis,  J.,  delivering  the 
opinion  of  the  Supreme  Court  of  that  State,  says :  "  The  doctrine  is  firmly  established  in  this 
State,  that  where  a  contract  has  been  substantially  though  not  strictly  performed  —  where  the 
party  failing  to  perform  according  to  the  terms  of  his  contract  has  not  fjeen  guilty  of  a  volun- 
tary abandonment  or  willful  departure  from  the  contract,  has  acted  in  good  faith,  intending  to 
perform  it  according  to  its  stipulations,  but  has  failed  in  strict  compliance  with  its  provisions, 
and  where  from  the  nature  of  the  contract  and  of  the  labor  performed  the  parties  cannot  re- 
scind, and  stand  in  statu  quo,  but  one  of  them  must  derive  some  benefit  from  the  labor  or  money 
of  the  other,  —  in  such  case  the  party  failing  to  jierform  his  contract  strictly,  may  recover  of  the 
other  as  upon  a  quantum  meruit  for  such  a  sum  only  as  the  contract  as  performed  has  been  of 
real  and  actual  benefit  to  the  other  party,  estimating  such  benefit  by  reference  to  the  contract 
price  of  the  whole  work." 

And  the  rule  by  which  compensation  is  to  be  made  for  the  partial  performance  of  the  con- 
tract, is  thus  declared  :  — 

"  The  party  failing  to  perform  must  first  deduct  from  the  contract  price  — 

"1st.  Such  sum  as  will  enable  the  other  party  to  get  the  contract  completed  according  to 
its  terms ;  or  where  that  is  impossible  or  unreasonable,  such  a  sum  as  will  fully  compensate 
him  for  the  imperfection  in  the  work  and  insufhciency  of  the  materials,  so  that  he  shall  in  this 
respect  be  made  as  good,  pecuniarily,  as  if  the  contract  had  been  strictly  performed. 

"  2d.  Whatever  additional  damages  his  breach  of  the  contract  may  have  occasioned  to  the 
other." 

The  cases  of  Dyer  v.  Jones,  8  Vt.  205  ;  Oilman  v.  Hall,  11  Vt.  510  ;  Brackett  v.  Morse,  23 
Vt.  554  ;  Morrison  v.  Cummings,  26  Vt.  486 ;  Hubbard  v.  Belden,  27  Vt.  645  ;  Barker  v.  The 
Troy  &  Rutland  R.  R.  Co.  27  Vt.  "80  ;  Kettle  v.  Harvey,  21  Vt.  301,  and  Swift  v.  Harriman, 
30  Vt.  607,  firmly  maintain  in  that  State  the  same  quasi  equitable  doctrine  in  actions  at  law, 
holding  that  where  the  stipulations  are  not  in  the  nature  of  conditions  precedent,  a  party  who 
but  partly  fulfills  his  contract  may  recover  for  what  has  been  done  under  it  to  the  extent  that 
such  partial  pei'formance  has  benefited  the  other.  So  in  the  same  State,  where  one  agrees  to 
work  for  another  a  certain  time,  he  can  maintain  the  action  for  his  compensation  without 
making  up  time  he  has  reasonably  lost  during  the  period,  and  the  time  so  lost  will  be  deducted. 
McDonald  v.  Montague,  30  Vt.  (1  Shaw)  357.  Such,  also,  would  seem  to  be  the  rule  in  In- 
diana; vide  McKinney  v.  Springer,  3  Ind.  59,  by  which  the  prior  cases  of  Swift  v.  Williams,  2 
Carter,  365,  and  Hoagland  v.  Moore,  2  Blackf.  167,  are  overruled  as  to  the  point  in  question. 


CH. 


VII.] 


PART    PERFORMANCE. 


237 


pletely  performed,  cannot  be   conclusive  as  to  the  remunera- 
tion.    Other  evidence  must  be  resorted  to,  and  other  consid- 


coiikl  not,  in  an  action  of  assumpsit,  recover 
for  tlie  value  of  the  work  done,  or  tlic  mate- 
rials found.  Sinclair  v.  Bowles,  9  B.  &  Cres. 
9'2.  Ho,  where  a  servant  hired  for  a  year 
refused  to  oiicy  his  orders,  and  was  dismissed, 
and  brou;;lit  suit  for  the  time  he  had  actually 
been  emjjloyed,  it  was  held  by  Lord  Ellen- 
borough  at  Nisi  Prius,  he  could  not  recover. 
Spain  V.  Arnott,  2  Stark.  256.  So  on  an 
agreement  to  deliver  one  hundred  bags  of 
hops  by  a  certain  day,  and  part  delivery  being 
nuule  and  refused,  suit  was  brought,  the  plain- 
tiff was  non-suited  ;  the  court,  however,  using 
language  somewhat  ambiguous,  saying  that 
"  the  contract  was  entire  and  could  not  be 
split,  and  that  the  plaintiff  had  no  right  to 
sue  until  the  whole  quantity  was  delivered,  or 
until  the  time  for  delivering  the  whole  had 
arrived."  Waddiugton  v.  Oliver,  5  Bus.  & 
Pull.  61  ;  and  the  same  decision  was  nuide 
upon  a  contract  for  the  sale  of  one  hundred 
sacks  of  flour.  Walker  v.  Dixon,  2  Stark. 
281. 

So  where  the  defendant  had  agreed  with 
plaintiif  to  sujiply  him  with  one  huiulred  and 
tifty  tons  of  cast-iron  girders,  as  per  drawings 
to  be  provided  by  the  plaintiff,  and  drawings 
for  a  few  tons  weight  only  were  sent  within 
the  necessary  time,  it  was  held  by  the  Court 
of  Common  Pleas,  that  the  contract  was  not 
divisible,  and  that  as  drawings  for  the  whole 
of  the  girders  had  not  been  sent,  the  plaintiff 
could  not  recover  for  the  non-delivery  of  those 
for  which  drawings  had  been  sent.  Kingdom 
V.  Cox,  5  M.  Gr.  &  S.  522. 

The  same  principle  has  been  recognized  in 
the  United  States.  So,  where  A  agreed  to 
work  for  B  teu  and  a  half  months,  and  spin 
yarn  at  three  cents  per  run,  and  afterwards 
left  the  service  of  B  before  the  expiration  of 
the  tin)e,  and  brought  an  action  against  him 
for  spinning  eight  hundred  and  forty  five  runs 
at  three  cents  per  run,  it  was  held  that  the 
contract  was  entire  and  must  be  performed  as 
a  condition  precedent  before  he  could  bring 
an  action  against  B  for  the  price  of  the  labor. 
M'Millan  v.  Vanderlip,  12  J.  11.  165.  The 
same  principle  was  recognized  in  regard  to  a 
contract  for  hiring  for  a  year.  Thorpe  v. 
White,  13  J.  R.  53;  and  the  general  doctrine, 
that  where  a  special  agreement  subsists  in  full 
force  the  plaiutitf  cannot  recover  under  the 
money  counts,  was  laid  down  in  regard  to  an 
agreement  to  deliver  whiskey,  in  Raymond  v. 
Bearnard,  12  J.  R.  274.     See  also,  Champlin 


V.  Rowley,  18  Wend.  187.  "The  principle 
has  been  repeatedly  recognized  by  the  courts 
of  this  State  (New  York),  that  where  a  party 
enters  into  a  special  contract  which  is  entire, 
for  tlie  sale  and  delivery  of  pro]ierty  at  a  spe- 
cified price,  a  full  performance  on  his  ])art  is  a 
condition  precedent  to  his  right  of  action 
against  the  vendee  for  the  price  of  any  part  of 
the  property  delivered  uiuler  the  contract." 
M'Knight  v.  Duulop,  4  Barb.  S.  C.  R.  36  : 
aflirmed  5  N.  Y.  537.  In  Ohio,  also,  these 
decisions  have  been  followed  ;  and  where  the 
])laintiff  agreed  to  deliver  a  whole  crop  of 
corn,  payment  to  be  made  on  a  day  certain 
after  the  delivery,  he  cannot  recover  for  a 
part.     Witherow  v.  Witherow,  16  Ohio,  238. 

So,  again,  where  the  plaintiff  had  agreed  to 
clear  and  fence  certain  land  for  a  specified 
sum  within  a  given  period,  and  after  doing 
some  of  the  work  abandoned  it,  it  was  held 
that  he  could  not  maintain  an  action  for  the 
labor  actually  performed.  Jennings,  v.  Camp, 
13  J.  R.  94  ;  1  and  the  same  principle  was 
held  in  relation  to  an  agreement  to  take 
charge  of  a  certain  brick-yard,  and  make  a 
certain  cjuantity  of  bricks  for  a  given  sum. 
Clark  V.  Smith,  14  J.  R.  326.  So  also  on  an 
agreement  to  deliver  pork.  Tattle  v.  Mayo,  7 
J.  R. 132. 

So,  also,  where  the  plaintifiF  agreed  with  the 
defendant  to  work  for  him  for  a  year  at  ten 
dollars  per  month,  and  worked  ten  and  a  half 
months,  and  then  left  the  defendant's  employ- 
ment on  a  Saturday,  declaring  he  would  work 
no  longer.  On  Monday  he  returned  and  of- 
fered to  work,  but  the  defendant  said  he  would 
employ  him  no  more.  Upon  this  he  sued  the 
defiiudant  for  work  and  lai)or,  and  it  was  held 
he  could  not  recover  an v thing.  Lantry  v. 
Parks,  8  Cow.  63 ;  S.  P.  Monell  v.  Burns,  4 
Denio,  121.  And  again,  in  Massachusetts, 
where  one  Mansfield  had  agreed  with  Hol- 
brook  to  erect  and  finish  a  barn  by  a  certain 
time  for  a  specified  sum,  and  left  the  work 
unfinished,  it  was  held  that  Mansfield  could 
maintain  no  action,  either  on  the  contract  or 
on  a  quantum  meruit,  against  Holbrook.  Paxon 
V.  Mansfield,  2  Mass.  147. 

So,  where  the  plaintiff  agreed  to  work  for 
the  defendant  for  eight  months,  for  $104,  or 
$13  per  month,  and  quitted  the  service  before 
the  expiration  of  the  time,  it  was  held,  in  an 
action  for  work  and  labor,  that  he  could  not 
recover.     Reab  v.  Moor,  19  J.  R.  337. '-^ 

So  in  Pennsylvania,  a  person  cannot  recover 


1  The  same  principle  was  laid  down  in  Allen  v.  Curies,  6  Ohio,  505. 

2  See  to  the  same  purport,  Henson  v.  Hampton,  32  Miss.  408;  Posey  v.  Garth,  7  Mo.  94; 
Dickson  v.  Caldwell,  17  Mo.  575  :  Hutchinson  v.  Wetmore,  2  Cal.  310;  Schnerr  v.  Lemp,  19 
Mo.  40.  But  in  Vermont  it  has  lieen  held,  in  accordance  with  the  rule  in  that  State,  already 
noticed  {ante,  216,  note  1),  that  when  an  infant  makes  a  contract  with  an  adult  to  serve  for  a 
given  time,  and  leaves  before  he  has  performed  the  whole  of  the  service,  he  is  entitled 
to  recover  what  his  services  are  reasonably  worth,  taking  into  consideration  the  injury  to 
the  other  party.     Hoxie  v.  Lincoln,  25  Vt.  206  ;  and  see  Thomas  v.  Dike,  1 1  Ibid.  273.     So  it 


238 


CONTRACTS. 


[CH.    YII. 


erations  affect  the  result.     Still,  the  contract  to  a  certahi 

[217]  extent   furnishes  the  measure   of  remuneration.-^     And 

the  rule  seems  to  be  the  same,  whether  the  agreement 


for  part  performance  of  an  entire  conti'act, 
where  he  has  failed  in  full  performance  on  his 
part.  Martin  v.  ISchoenberger,  8  Watts  & 
Sery.  367. 

So  in  Massachnsetts,  where  the  plaintiff 
agreed  to  work  for  the  defemlant  for  a  year  for 
$120,  but  before  the  expiration  of  the  term  left 
his  service,  without  the  defendant's  fault  and 
against  his  consent,  it  was  held  that  he  could 
recover  nothing,  neither  on  the  contract  nor 
upon  a  (juantum  meruit.  Stark  v.  Parker, 
2  Pick.  2()7.  And  the  same  point  M-as  ruled 
in  Moses  v.  Stevens,  2  Pick.  232.  So,  too, 
Thayer  v.  Wadsworth,  19  Pick.  349  ;  Olmsted 
V.  Beale,  19  Pick.  528;  Davis  v.  Maxwell,  12 
Met.  286.  See  contra  in  New  York  as  to 
iutants,  Whitmarsh  v.  Hall,  3  Denio,  375, 
because  they  cannot  contract. 

In  a  recent  case  it  was  said,  "  If  the  plaintiff 
agreed  to  labor  for  the  defendants  for  one  year 
and  left  their  service  at  the  end  of  six  months, 
she  could  not  maintain  an  action  for  the 
services  actually  rendered."  liice  v.  Dwight 
Manuf.  Co.  2  Gushing,  80. 

So  in  Vermont,  "  The  contract  being  entire 
and  executory,  although  the  plaintitf  has  per- 
formed a  part  of  it,  yet  having  failed  to  per- 
form the  remainder  without  any  sufficient  ex- 
cuse and  without  the  consent  of  the  defend- 
ants, he  cannot  recover  either  upon  the  special 
or  general  counts.  Jones  v.  Marsh,  22  Verm. 
144  ;  and  S.  P.  Kettle  v.  Harvey  et  al.  21 
Verm.  301  ;  and  Mullen  v.  Gilkinson,  19 
Verm.  503.  But  illness,  which  incapacitates 
the  plaintiff  from  jjerforming  his  contract,  lets 
him  in  to  recover  on  a  quantum  meruit.  Seaver 
V.  Morse,  20  Verm.  620.^ 

In  a  recent  case  in  the  State  of  New  York, 
whei'e   the  plaintiff  had  agreed   to  deliver  a 


specified  quantity  of  hay  at  a  given  ])rice,  and 
only  deli\ered  ])art,  and  brouglit  a  suit  for  the 
value  of  tliat  part,  the  learned  Chancellor 
Walworth,  however,  held  this  language  :  — 

"  The  principle  insisted  upon  is,  that  it  is 
unconscientious  and  ineiiuitable  for  a  party 
who  has  been  actually  benefited  by  the  part 
performance  of  a  eonti'act,  above  or  beyond 
the  damages  lie  has  sustained  by  the  non-jjer- 
formance  of  the  residue  of  the  agreement,  to 
retain  this  excess  of  benefit  without  making 
the  other  party  a  comjjensation  therefor  ;  and 
that  this  excess  of  benefit,  arising  from  the 
part  performance  of  the  other  party,  forms  a 
new  consideration,  upon  which  the  law  imijlies 
a  promise  to  ])ay  for  the  same,  and  which 
excess  of  benefit,  therefore,  may  be  recovered 
in  the  equitable  action  of  assumpsit.  But  if 
the  nature  of  the  part  performance  is  such 
that  the  other  party  can  reject  the  benefit 
received  therefrom,  as  by  offering  to  return 
specific  articles  received  in  part  performance, 
but  not  actually  converted  or  used,  he  is  at 
liberty  to  do  so,  and  to  reserve  his  remedy  for 
the  non-performance  of  the  contract.  Courts 
of  equity  sometimes  act  upon  a  similar  prin- 
ciple, in  relieving  a  party  against  a  penalty 
or  forfeiture  arising  from  misfortune,  or  the 
neglect  of  a  party  to  perform  his  agreement ; 
and  perhaps  in  some  cases  it  has  been  done 
where  the  forfeiture  was  incurred  willfully  and 
intentionally,  Avithout  any  pretense  of  excuse 
arising  from  mistake  or  inability  to  perform. 
With  the  exception  of  this  last  class  of  cases, 
if  courts  of  justice  were  at  liberty  to  make  new 
laws  instead  of  administering  those  which  are 
already  in  existence,  and  upon  which  the  con- 
tract of  the  parties  litigant  is  sujjposed  to  be 
founded,  or  if  this  were  a  new  question  upon 


is  held  in  Tennessee,  that  if  he  is  discharged,  although  for  sufficient  cause,  he  may,  notwith- 
standing, recover  upon  a  quantum  meruit  the  value  of  the  services  rendered  his  emjjloyer.  Jones 
V.  Jones,  2  Swan  (Teun.),  605.     See  also,  Kodemer  v.  Hazlehurst,  9  Uill  (Md.),  288. 

1  It  is  long  and  well  settled,  that  where  a  special  agreement  has  been  executed  and  nothing 
remains  to  be  done  excejit  the  payment  of  the  money  due  by  the  defendant,  a  general  indebita- 
tus assumpsit  may  be  maintained,  but  in  such  cases  the  special  agreement  will  furnish  the  meas- 
ure of  damages.  Dermott  v.  Jones,  2  Wallace,  1  ;  Bank  of  Columbia  v.  Paterson,  7  Cranch, 
299  ;  Perkins  v.  Hart,  11  Wheat.  237 ;  Miles  v.  JMoodie,  3  S-  &  R.  211  ;  Williams  v.  Sherman, 
7  Wend.  109.  See  Chamberlin  v.  Scott,  33  Vt.  80,  infra,  222,  note.  The  measure  of  damages 
in  an  action  on  the  common  counts  for  work  accepted,  but  not  done  according  to  the  con- 
tract, should  be  the  value  of  the  work  with  the  right  in  the  defendant  to  recoup  damages  for 
the  non-performance.     Dermott  v.  Jones,  23  How.  (U.  S.)  220. 

^  Wolfe  Ex'r  v.  Howes,  20  N.  Y.  197  ;  Fahy  v.  North,  19  Barb.  341  ;  Hubbard  v.  Belden, 
27  Vt.  645  ;  and  see  Patrick  v.  Putnam,  Ibid.  759.  And  where  an  agent  was  employed  to 
superintend  the  construction  of  an  engineering  work  under  a  contract  by  which  he  was  to 
receive  as  compensation  a  third  of  the  profits  besides  a  salary,  but  died  after  the  greater  part  of 
the  work  had  been  done,  and  it  was  afterwards  finished  at  a  large  profit,  it  was  held  in  an 
action  brought  by  his  executors,  that  they  were  entitled  to  recover  the  jiro  rata  proportion 
of  the  salary  and  of  the  profits  under  the  contract,  which  last  were  measured  by  taking  one- 
third  of  such  a  proportion  of  the  whole  ])rofits  earned  and  received  by  the  defendant,  as  the 
cost  of  the  work  done  at  the  time  of  the  testator's  death  bore  to  that  of  the  completed  under- 
taking.    Clark  Ex'r  v.  Gilbert,  26  N.  Y'.  279. 


CH. 


VII.] 


PART    PERFORMANCE. 


239 


has  been  departed  from  with  or  without  mutual  consent.^  [218] 
So  in  a  case  in  Massachusetts,  where  the  plaintiff  was 


which  a  court  in  this  State  was  now  to  pass 
for  the  first  time,  in  settling  a  principle  uj)on 
the  flexibility  of  the  common  law  as  api)lied  to 
new  cases,  I  see  no  reasonable  objection  to  the 
transferring  these  priiici|)les  of  tlie  court  of 
chancery  to  the  courts  of  conmion  law,  in  cases 
of  mere  personal  contract  not  founded  ujion 
agreements  relative  to  the  sale  or  transfer  of 
an  interest  in  real  estate.  But  I  consider  this 
questit)n  as  settled  in  this  State  by  a  uniform 
course  of  decisions,  for  the  last  twenty-five 
years,  during  which  time  the  laws  have  under- 
gone a  most  thorough  revision  by  the  legisla- 
ture, without  any  attempt  to  change  the  law 
in  this  respect,  as  settled  by  the  Supreme 
Court.  I  think  it  belongs,  therefore,  to  the 
legislature,  and  not  to  this  court,  to  make  a 
change  in  the  law  in  this  respect,  if  such  a 
change  is  deemed  to  be  expedient  and  useful 
to  tlie  community.  The  only  possible  objection 
I  can  perceive  to  such  a  change,  is  that  it  may 
be  a  strong  temptation  to  negligence  in  the 
performance  of  personal  contracts,  as  the 
known  practice  .of  the  Court  of  Chancery 
unquestionably  is,  with  respect  to  agreements 
for  the  sale  or  purchase  of  real  property." 
And  it  was  held  that  the  plaintiff'  could  not 
recover.  Champlin  v.  Eowley,  18  Wend. 
187. 

And  this  case  has  been  affirmed  in  New 
York,  where  the  suit  was  brought  by  a  party 
conti.acting  to  deliver  lumber  by  a  day  speci- 
fied, but  who  delivered  only  part  of  it.  Paige 
V.  Ott,  5  Denio,  406. 

In  Louisiana  this  subject  is  regulated  by  the 
provisions  of  the  Code  Act,  2720,  2721. 
Angelloz  v.  Rivollet,  2  La.  Ann.  11.  652. 

On  the  other  hand,  in  England  and  in  this 
country,  tliere  is  a  class  of  cases  which  it  is 
difficult,  if  not  impossible,  to  reconcile  with 
those  just  cited. 

It  is  laid  down  as  a  general  position  in 
Buller's  Nisi  Prius,  139,  that  if  a  man 
declare  upon  a  special  contract,  and  upon  a 
quantum  meruit,  and  prove  the  work  done  but 
not  according  to  the  contract,  he  may  recover 
on  the  quantum  meruit ;  for  otherwise  he  would 
not  l)e  able  to  recover  at  all.  And  this  general 
priucipie  was  recognized  as  law  in  Cooke  v. 
Munstone,  4  Bos.  &  Pul.  351,  355. 

So  it  was  held  in  England,  that  where  there 
is  an  entire  contract  for  the  delivery  of  goods, 
and  some  of  the  goods  have  been  delivered, 
and  the  vendee  does  not  return  litem,  upon  the 
failure  of  the  vendor  to  perform  his  part  of  the 
contract,  the  latter  may  bring  an  action  for 
the  value  of  the  goods.  Shipton  v.  Casson, 
5  Barn.  &  Cres.  378. 

So,  again,  where  the  plaintiff  had  agreed 
to  deliver  to  the  defendant  250  bushels  of 
wheat,  and  in  fact  only  delivered  130,  and 
brought  suit  for  the   quantity  delivered,    the 


King's  Bench  held  he  was  entitled  to  recover  ; 
Lord  Tenterden,  C.  J.,  saying,  "  If  the  rule 
contended  for  were  to  prevail,  it  would  follow 
that  if  there  had  been  a  contract  for  250 
bushels  of  wheat  and  249  had  been  delivered 
to  and  retained  by  the  defendant,  the  vendor 
could  never  recover  for  the  249,  because  he 
had  not  delivered  the  whole."  And  Parke,  J. 
said,  "  Where  there  is  an  entire  contract  to 
deliver  a  large  quantity  of  goods,  consisting 
of  distinct  ])arcels,  within  a  specified  time,  and 
the  seller  delivers  part,  he  cannot,  Iiefore  the 
expiration  of  that  time,  bring  an  action  to 
recover  the  price  of  that  part  delivered ; 
because  the  pui'chaser  may,  if  the  vendor  fail 
to  complete  his  contract,  return  the  part  de- 
livered. But  if  Ite  retain  the  part  delivered 
after  the  seller  has  failed  in  performing  his 
contract,  the  latter  may  recover  the  value  of 
the  goods  which  he  has  so  delivered."  Oxen- 
dale  V.  Wetherell,  9  Barn.  &  Cres.  386.  But 
this  decision  is  not  law  in  New  York. 

In  Champlin  v.  Rowley,  18  Wend.  187, 
above  cited,  Mr.  Chancellor  Walworth  said, 
"  This  decision,  carried  to  the  extent  it  was  in 
that  case,  cannot  be  Considered  as  good  law 
anywhere,  for  it  is  not  founded  iqion  any 
equitable  principle,  and  is  contrary  not  only 
to  justice,  but  to  common  sense.  The  only 
way  I  can  account  for  it  is  upon  the  supposi- 
tion that  the  facts  of  the  case  are  not  properly 
stated  in  the  report,  or  that  the  injustice  of 
requiring  the  party  who  was  not  in  fault  to  be 
at  the  expense  of  returning  to  the  other  party 
bulky  articles  of  this  description,  or  even  of 
seeking  him  for  the  purpose  of  making  an  offer 
to  return  them,  to  protect  himself  from  an 
action,  was  not  presented  to  the  consideration 
of  the  court." 

So  also,  in  this  country,  it  has  been  said 
that  where  there  is  an  honest  intention  to 
])ursue  the  contract,  and  a  substantive  execu- 
tion of  it,  but  some  comparatively  slight  de- 
viations as  to  some  particulars  provided  for,  if 
the  partial  performance  of  the  contract  is  of 
any  value  or  benefit  to  the  other  party,  he  who 
does  the  work  may  recover  on  a  quantum  meruit. 
So  it  was  held  in  Massachnssetts,  on  a  build- 
ing contract,  Hayward  v.  Leonard,  7  Pick. 
181  ;  and  the  same  point  was  again  decided  on 
a  similar  contract,  in  Smith  v.  First  Cong. 
Meeting  House  in  Lowell,  8  Pick.  178.  See 
the  latter  case  commented  07i  in  Pullman  v. 
Corning,  14  Barb.  S.  C.  II.  174  (affirmed 
9  N.  Y.'93),  and  disapproved. 

See,  in  same  State,  a  case  where  a  plaintiff 
who  had  undertaken  to  build  a  bridge,  but 
had  departed  from  the  contract,  and  built  it  so 
unskillt'nlly  that  it  was  carried  away,  and  it 
was  held  that  he  could  not  recover  on  the  con- 
tract because  he  had  not  pursued  it,  nor  on 
the  quantum  meruit,  because  the  defendants  had 


1  Smith  V.  Foster,  36  Vt.  705. 


240 


CONTRACTS. 


[ciT.  vn. 


allowed    to   recover  on  a  quantum  meruit  for  Ijuilding  a 
[210]  house,  the  agreement  not  having  been  strictly  adhered 


received  no  benefit  from  his  labors.  Taft  v.  In- 
habitants ofMuiita^iUC,  14  Mass.  282.  In  the 
same  State,  see  Moulton  v.  Trask,  9  Met. 
577. 

It  is  also  settled  in  New  York,  by  repeated 
decisions,  that  if  tliere  be  a  special  agreement 
to  do  a  piece  of  work,  and  the  wcjrk  be  done, 
but  not  pursuant  to  such  agreement,  either  in 
point  of  time  or  any  other  respect,  the  party 
can  recover  wliat  tiie  work  is  reasonably  worth 
on  tlie  common  counts. i  So  on  an  agreement 
to  deliver,  bore,  and  lay  log  waterpipes,  Lin- 
ningdale  v.  Livingston,  10  J.  K.  3G.  So  on  a 
contract  to  construct  a  mill  within  a  given 
time  for  a  given  sum,  Jewell  v.  Schroepjiel, 
4  Cowen,  5(34.  And  on  a  contract  to  ship 
cotton,  Peltier  v.  Sewall,  12  Wendell,  38G. 
And  so  in  Iowa,  Davis  v.  Fish,  1  Greene  (Iowa), 
407  ;  Dubois  v.  Delaware  &  H.  C.  Co.  4  Wend. 
290.  In  Vermont,  see  Myrick  v.  Slason,  19 
Verm.  121. 

And  there  is  a  very  numerous  class  of  ana- 
logous cases,  which  we  shall  have  occasion  to 
notice  when  we  come  to  the  subject  of  Recoup- 
ment, where,  on  the  imperfect  performance  of 
an  agreement,  the  defendant  is  allowed  to  re- 
coup his  loss  in  damages,  thus  recognizing  the 
general  princi])Ie,  that  the  precise  performance 
of  the  agreement  is  not  necessary  to  entitle  the 
plain  titf  to  recover. 

The  subject  presents,  indeed,  one  of  the 
most  vexed  questions  in  the  law ;  and  though 
it  regards,  as  I  have  said,  perhaps  more  strictly 
the  cause  of  action,  or  the  right  of  the  parties, 
than  the  measure  of  relief,  it  may  not  be  im- 
proper to  notice  the  mode  in  which  the  diffi- 
culty has  been  solved  by  the  very  learned  and 
able  Supreme  Court  of  New  Ham])shire. 

In  an  action  for  work  and  labor,  it  ajipearcd 
that  the  plaintitf  had  agreed  to  work  tor  the 
defendant  one  year  for  a  given  sum,  and  that 
before  the  expiration  of  the  time  agreed  on,  he 
had  quitted  his  service  without  the  defendant's 
consent,  and  on  this  he  was  held  entitled  to 
recover  for  the  time  he  was  emjiloyed.  Parker, 
C.  J.,  after  commenting  on  the  extreme  dis- 
agreement and  want  of  harmony  among  the 
cases,  and  calling  particular  attention  to  those 
where  a  recovery  had  been  allowed  on  partial 
performance  of  agreements  to  build,  proceeded 
to  say,  —  Britton  v.  Turner,  6  N.  H.  II. 
495,— 

"  The  cases  for  building,  etc.,  are  not  to  be 
distinguished,  in  principle,  from  the  present, 
unless  it  be  in  the  circumstance  that  where 
the  party  has  contracted  to  furnish  materials, 
and  do  certain  labor,  as  to  build  a  house  in  a 
specified  manner,  if  it  is  not  done  according  to 
the  contract,  the  party  for  whom  it  is  built 
may  refuse  to  yeceive  it,  elect  to  take  no 
benefit  from  what   has  been   performed,   and 


therefore  if  he  does  receive  he  shall  be  bound 
to  pay  the  value ;  whereas  in  a  contract  for 
labor  merely,  from  day  to  day,  the  jiarty  is 
continually  receiving  the  benefit  of  the  con- 
tract under  an  ex])ectation  tliat  it  will  be 
fulfilled,  and  cannot,  upon  the  breach  of  it, 
have  an  election  to  refuse  to  receive  what  has 
been  done,  and  thus  discharge  himself  from 
payment. 

"  But  we  think  this  difference  in  the  na- 
ture of  the  contracts  does  not  justify  the  ap- 
plication of  a  different  rule  in  relation  to 
them. 

"  The  party  who  contracts  for  labor  merely, 
for  a  certain  period,  does  so  with  the  full 
knowledge  that  he  must,  from  the  nature  of 
the  case,  bo  accepting  ])art  jierformance  from 
day  to  day,  if  the  other  party  commences  the 
performance,  and  with  knowledge  also  that 
the  other  may  eventually  fail  of  completing 

the  entire  term It  is  said  that  in  those 

cases  where  the  plaintiff  has  been  permitted  to 
recover  there  was  an  acceptance  of  what  had 
been  done.  The  answer  isi  that  where  the 
contract  is  to  labor  from  day  to  day,  for  a 
certain  period,  the  party  for  whom  the  labor  is 
done,  in  truth  stipiUates  to  receive  it  from  day 
to  day,  as  it  is  performed  ;  and  although  the 
other  may  not  eventually  do  all  he  has  con- 
tracted to  do,  there  has  been  necessarily  an 
acceptance  of  what  has  been  done  in  pursuance 
of  the  contract,  and  the  Jiarty  must  have 
understood  when  he  made  the  contract,  that 

there  was  to  be  such  acceptance We 

have  no  hesitation  in  holding  that  the  same 
rule  should  be  applied  to  both  classes  of  cases, 
especially  as  the  operation  of  the  rule  will  be 
to  make  the  party  who  has  failed  to  fulfill  his 
contract,  liable  to  such  amount  ot'  danuiges  as 
the  other  party  has  sustained,  instead  of  sub- 
jecting him  to  an  entire  loss  for  a  partial 
failure,  and  thus  making  the  amount  received 
in  many  cases  wholly  disproportioned  to  the 

injury We  hold,  then,  where    a 

party  undertakes  to  pay  upon  a  special  con- 
tract for  the  performance  of  labor,  or  the 
furnishing  of  materials,  he  is  not  to  be  charged 
upon  such  special  agreement  until  the  money 
is  earned  according  to  the  terms  of  it ;  and 
where  the  parties  have  made  an  express  con- 
tract, the  law  will  not  imply  aiul  raise  a 
contrac't  different  from  that  which  the  parties 
have  entered  into,  except  upon  some  further 
transaction  between  the  parties. 

"  In  case  of  a  failure  to  perform  such  special 
contract,  by  the  default  of  the  party  contract- 
ing to  do  the  service,  if  the  money  is  not  due 
by  the  terms  of  the  s]3ecial  agreement,  he  is 
not  entitled  to  recover  for  his  labor,  or  for  the 
materials  furnished,  unless  the  other  ])arty  re- 
ceives what  has  been  done  or  furnished,  and 


^  But  to  sustain  such  a  recovery  there  must  be  a  waiver  of  strict  performance  or  an  accept- 
ance of  the  work  done,  or  the  equivalent  of  one  of  these.    Pullman  v.  Corning,  9  N.  Y.  93. 


CH.    VII.] 


PART    PERFORMANCE. 


241 


to,  and   the  jury  were    told    at    the    trial   to    consider  [220] 
what  the  house   was   worth   to   the    defendant,  and   give 


upon  the  whole  case  derives  a  benefit  from 
it. 

"  But  if,  where  a  contract  is  made  of  such  a 
character,  a  party  actually  receives  labor,  or 
materials,  and  thereby  derives  a  bcnelit  and 
advantage,  over  and  above  the  dama5i;e  which 
has  resulted  from  the  breach  of  the  contract 
by  the  otlier  party,  the  labor  actually  done, 
and  the  value  received,  furnish  a  new  con- 
sideration, and  the  law  thereupon  raises  a 
promise  to  pay  to  the  extent  of  the  reasonable 
worth  of  such  excess.  This  may  be  considered 
as  making  a  new  case,  one  not  within  the 
original  agreement,  and  the  party  is  entitled 
to  recover  on  his  new  case  for  the  work  d(nie, 
not  as  agreed,  yet  accepted  by  the  defend- 
ant. 

"  If,  on  such  failure  to  perform  the  whole, 
the  nature  of  the  contract  be  such  that  the 
employer  can  reject  what  has  been  done,  and 
refuse  to  receive  any  benefit  from  the  part 
performance,  he  is  entitled  so  to  do,  and  in 
such  case  is  not  liable  to  be  charged,  unless  he 
has  before  assented  to  and  accepted  of  what 
has  been  done,  however  much  the  other  party 
may  have  done  towards  the  performance.  He 
has,  in  such  case,  received  nothing,  and  having 
contracted  to  receive  nothing  but  the  entire 
matter  contracted  for,  he  is  not  bound  to  pay  ; 
because  his  express  promise  was  only  to  pay 
on  receiving  the  whole,  and,  having  actually 
received  nothing,  the  law  cannot  and  ought 
not  to  raise  an  implied  promise  to  pay. 

"  But  where  the  party  receives  value,  takes 
and  uses  the  materials,  or  has  advantage  from 
the  labor,  he  is  liable  to  pay  the  reasonable 
worth  of  what  he  has  received.  And  the  rule 
is  the  same,  whether  it  was  received  and  ac- 
cepted by  the  assent  of  the  party  prior  to  the 
breach,  under  a  contract  by  which,  from  its 
nature,  he  was  to  receive  labor,  from  time  to 
time,  until  the  completion  of  the  whole  con- 
tract ;  or  whether  it  was  received  and  accepted 
by  an  assent  subsequent  to  the  performance  of 
all  which  was  in  fact  done.  If  he  received  it 
under  such  circumstances  as  precluded  him 
from  rejecting  it  afterwards,  that  does  not 
alter  the  case ;  it  has  still  been  received  by  his 

assent The  amount,  however,  for  which 

the  employer  ought  to  be  charged,  where  the 
laborer  abandons  his  contract,  is  only  the 
reasonable  worth,  or  the  amount  of  advantage 
he  receives  upon  the  whole  transaction ;  and, 
in  estimating  the  value  of  the  labor,  the  con- 
tract price  for  the  service  cannot  be  exceeded. 

"  If  a  person  makes  a  contract  fairly,  he  is 
entitled  to  have  it  fully  performed  ;  and  if  this 
is  not  done,  he  is  entitled  to  damages.  He  may 
maintain  a  suit  to  recover  the  amount  of  dam- 
age sustained  by  the  non-performance. 

"  The  benefit  and  advantage  which  the  party 


takes  by  the  labor,  therefore,  is  the  amount  of 
value  whicii  he  receives,  if  any,  after  deducting 
the  amount  of  damage  ;  and  if  he  elects  to  ]iut 
this  ill  defense  he  is  entitled  so  to  do  ;  and  the 
implied  jn'omise  which  the  law  will  raise,  in 
such  case,  is  to  pay  such  amount  of  the 
stipulated  price  for  the  whole  labor  as  remains 
after  deducting  what  it  would  cost  to  procure 
a  comjjletion  of  the  residue  of  the  service,  and 
also  any  damage  which  has  been  sustained  by 
reason  of  the  non-fulfillment  of  the  contract. 

"  If  in  such  case  it  be  found  that  the  dam- 
ages are  equal  to  or  greater  than  the  amount 
of  the  labor  performed,  so  that  the  employer, 
having  a  right  to  the  full  performance  of  the 
contract,  has  not  upon  the  whole  case  received 
a  beneficial  service,  the  plaintitt'  cannot  re- 
cover  There  may  be  instances,  however, 

where  the  damage  occasioned  is  much  greater 
than  the  value  of  the  labor  performed ;  and  if 
the  party  elects  to  permit  himself  to  be  charged 
for  the  value  of  the  labor,  without  interposing 
the  damages  in  defense,  he  is  entitled  to  do  so, 
and  may  have  an  action  to  recover  his  dam- 
ages for  the  non-performance,  whatever  they 
may  be. 

"  And  he  may  commence  such  action  at  any 
time  after  the  contract  is  broken,  notwith- 
standing no  suit  has  been  instituted  against 
him  ;  but  if  he  elects  to  have  the  damages 
considei-ed  in  the  action  against  him,  he  must 
be  understood  as  conceding  that  they  are  not 
to  be  extended  beyond  the  amount  of  what  he 
has  received,  and  he  cannot  afterwards  sustain 
an  action  for  further  damages."  i 

In  Illinois,  a  difierent  conclusion  has  been 
arrived  at.  In  an  action  for  work  and  labor, 
it  appeared  that  the  plaintiff  had  agreed  to 
work  tor  the  defendant  on  his  farm  for  eight 
months  for  ninety  dollars ;  but  that  he  left 
the  defendant's  employment,  without  his  con- 
sent or  fault,  at  the  end  of  four  months.  It 
was  held  that  the  plaintiff  could  not  recover  on 
a  quantum  meruit  for  the  time  during  which  he 
had  actually  bestowed  his  labor.  And  the 
court  said,  "  It  is  no  objection  to  say  that  the 
defendant  has  received  the  benefit  of  his  labor, 
this  being  a  case  where,  from  its  nature,  the 
defendant  could  not  separate  the  products  of 
his  labor  from  the  general  concerns  of  his 
farm,  and  ought  not,  therefore,  to  be  responsi- 
ble to  any  extent  whatever  for  not  doing  that 
which  was  impossible."  Eldridge  v.  llowe, 
2  Gilman,  91.^ 

The  subject  has  been  recently  considered  in 
New  York.  It  was  there  held,  in  a  case  where 
the  plaintiff  contracted  with  the  defendants  to 
build  a  stone  building  in  a  good  and  work- 
manlike manner  at  a  specified  sum,  and  the 
house  was  built  in  so  unskillful  a  manner  that 
the  walls  cracked  and  could  not  be  made  good 


1  See  to  a  similar  effect,  Lowe  v.  Sinklear,  27  Mo.  (6  Jones)  308. 

2  But  compare  Downey  v.  Burke,  23  Mo.  228. 

16 


242  CONTRACTS.  [CH.    VH. 

that  sum  in  damages,  —  on  a  motion  for  a  new  trial, 
[221]  this  was  held  wrong,  the  court  saying,  "  The  house  might 

have  been  worth  the  whole  stipulated  price,  notwith- 
standing the  departures  from  the  contract.  They  should  have 
been  instructed  to  deduct  so  much  from  the  contract  price  as 
the  house  was  worth  less  on  account  of  these  departures."  And 
a  new  trial  was  granted.*  ^ 

Deviation  by  Consent.  —  So,  also,  where  work  is  done  under 
a  special  agreement  at  estimated  prices,  and  there  is  a  devia- 
tion from  the  original  plan,  by  the  consent  of  the  parties,  the  con- 
tract is  made  the  rule  of  payment,  as  far  as  it  can  be  traced, 
and  for  the  extra  labor  the  party  is  entitled  to  his  quantum 
meruit?     It  has  been  thus  decided,  both  in  England  t  and  in 

New  York.  Where  performance  of  a  special  contract 
[222]  was  prevented  by  the  defendant,  and  suit  brought  on 

the  general  counts,  the  court  said,  "  The  defendant  may 
give  the  contract  in  evidence  with  a  view  to  lessen  the 
quantum  of  damages.     So  far  as  the  work  was  done  under  the 

and  safe  walls  without  taking  down  and  re-  *  Hay  ward  v.  Leonard,  7  Pick.  181. 

building  two  tilths  of  them,  —  that  the  plain-  t  Robson    v.    Godfrey,    1    Holt    N.   P.  C. 

tiff  could  not  recover  any  compensation  for  his  236. 
work.     Pullman  v.  Corning,  9  N.  Y.  93. 

1  Other  authorities  to  the  same  purport  are  Horn  v.  Batchelder,  41  N.  H.  86 ;  Laton  v. 
King,  19N.  H.  280;  Wadleigh  «;.  Town  of  Sutton,  6  N.  H.  15;  Corwin  i'.  Wallace,  1 7  Iowa,  374  ; 
Tait  V.  Shei-man,  10  Iowa,  60  ;  Crookshank  v.  Mallory,  2  Iowa  (Greene),  257  ;  White  v.  Oliver, 
36  Me.  92;  Hillyard  i;.  Crabtree,  11  Tex.  264;  Davidson  u.  Edgar,  5  Ibid.  492 ;  Merrow  v. 
Hunton,  25  Vt.  9  ;  Morrison  v.  Cummings,  26  Ibid.  486  ;  Davis  v.  Barrington,  10  Post.  (N.  H.) 
517.  See  aho  Vandeusen  v.  Blum,  18  Pick.  229;  Hayden  v.  Madison,  7  Greenl.  76.  The 
amount  recovered  in  such  case  cannot  exceed  the  price  which  would  have  been  allowed  under 
the  contract  for  the  same  amount  of  work  or  (piantity  of  materials,  had  the  contract  been  ful- 
filled. The  mode  of  ascertaining  the  real  benefit  received  from  the  part  performance  of  work, 
in  such  case,  is  to  estimate  the  whole  work  at  the  price  fixed  by  the  contract,  and  to  deduct 
from  that  the  amount  requisite  to  complete  the  part  of  the  work  left  unfinished.  If  any  loss  is 
occasioned  by  the  unfinished  part  costing  more  in  proportion  than  the  whole  was  undertaken 
for,  the  loss  must  be  borne  by  the  party  who  originally  contracted  to  do  the  whole.  The 
amount  to  be  allowed  may  in  some  cases  be  less  than  the  proijortion  which  the  work  done 
would  bear  to  the  cost  of  the  whole,  but  cannot  exceed  it.  M'Kinney  v.  Springer,  3  Ind.  R. 
59.  See  also,  Epperly  i;.  Bailey,  Ibid.  72  ;  Manville  v.  M'Coy,  Ibid.  148  ;  Heaston  v.  Colgrove, 
Ibid.  265.  Comjiare  also,  Bristol  v.  Tracy,  21  Barb.  (N.  Y.)  236 ;  Kidd  v.  Belden,  19  Ibid. 
276;  The  Isaac  Newton,  1  Abbott's  Adm.  R.  11. 

'■^  See  Merrill  v.  The  Ithaca  and  Owego  R.  R.  Co.  16  Wend.  586.  So  in  Missouri.  Marsh  v. 
Richards,  29  Mo.  99.  And  see  Barcus  v.  Hannibal,  Ralls  Co.  and  Paris  Plank  R.  Co.  26  Mo. 
102. 

And  where  the  contractor  is  in  default  so  that  he  cannot  sue  upon  his  contract,  but  the 
other  party  has  stood  by  and  seen  him  prosecute  the  work  without  objection,  and  been  bene- 
fited by  his  labor  and  materials,  the  contractor  is  entitled  to  compensation  to  the  extent  of 
such  benefit.  But  the  profits  which  he  might  have  made  if  he  had  complied  with  his  engage- 
ment, cannot  be  included  in  his  damages.  Garland  r.  New  Orleans,  13  La.  Ann.  43.  The  law 
in  such  case  implies  a  promise  on  the  other's  part  to  pay  what  the  labor  was  reasonably 
worth,  of  which  the  special  contract  will  furnish  the  evidence.  Jewell  v.  Schroeppcl,  4  Cow. 
564. 

As  to  the  mode  of  estimating  the  amount  recoverable  in  various  cases  on  a  quantum  meruit, 
see  Edington  v.  Pickle,  1  Sneed  (Tcnn.),  122;  Stockbridge  v.  Crooker,  34  Me.  349  ;  Cole  v. 
Clark,  3  Wis.  323. 


CH.    VII.]  PART   PERFORMANCE.  243 

special  contract,  the  prices  specified  in  it  are,  as  a  general  rule, 
to  be  taken  as  the  best  evidence  of  the  value  of  the  work.-^ 
Where  it  does  not  appear  that  the  work  was  rendered  more 
expensive  to  the  plaintiff  than  was  contemplated  when  the 
contract  was  made,  or  than  it  otherAvise  would  have  been,  in 
consequence  of  the  improper  interference  of  the  defendant,  or 
of  his  neglect  or  omission  to  perform  what  by  the  contract  he 
was  bound  to  do,  the  contract  prices  should  be  held  conclusive 
between  the  parties.  But  if  the  defendant  neglect  to  furnish 
the  materials  which  he  was  to  find  in  due  time,  so  that  the 
plaintift'  is  obliged  to  do  his  work  at  a  less  favorable  season,  and 
at  an  additional  expense,  such  expense  ought  to  be  taken  into 
consideration  and  added  to  the  contract  price."  *  ^ 

Extra  Work,  —  There  may  be  cases  where  the  work  em- 
braced in  the  contract  is  performed  under  circumstances  less 
advantageous  than  were  expected  at  the  time  of  the  estimate, 
and  where  the  additional  expense  thus  incurred  should  be  added 
to  the  contract  price.  So,  in  a  case  where  the  jDlaintiff  entered 
into  a  written  contract  with  the  defendants  to  construct  a 
section  of  a  canal,  to  receive  nine  cents  per  cubic  foot  for  ex- 
cavation, forty  cents  per  cubic  yard  for  rock,  and  eleven  cents 
for  embankment ;  and  the  defendants  had  so  far  rescinded  the 
contract  as  to  enable  the  plaintiff  to  recover  in  the  form  of  a 
quantum  meruit,  the  plaintiff  was  held  at  liberty  to  recover  for 
excavating  hard  pan  (that  not  being  mentioned  nor  included  in 
the  contract),  at  the  rate  which  it  was  worth ;  and  to  prove  the 
value  of  his  labor  in  this  respect,  wholly  irrespective  of  the 
contract.  The  contract  contained  a  provision  that  the  judgment 
of  the  defendant's  engineer  should,  in  case  of  a  difference  be- 
tween the  parties,  be  conclusive ;  but  this  was  held  not  to 
apply  to  the  hard  pan.f^ 

*  Koon  V.  Greenman,  7  Wend.  123.  S.   C.  in  error,  15  Wend.  87.     In  Alabama, 

t  Dubois  V.  Delaware  and  Hudson  Canal     see  Aikin  v.  Bloodgood,  12  Ala.  (N.  S.)  221. 
Co.  4  Wend.  285  ;  S.  C.  12  Wend.  334;   and 

t 

1  See  McClelland  v.  Snider,  18  111.  58;  Western  v.  Sharp,  14  B.  Monr.  (Ky.)  188;  Brig- 
ham  V.  Hawley,  17  111.  38. 

2  In  an  action  of  assumpsit  to  recover  for  machines  partly  constructed  under  a  contract  be-, 
tween  the  plaintitf  and  defendant,  but  left  unfinished  owing  to  the  defendant's  neglect  to  fur- 
nish necessary  castings,  and  therefore  not  delivered,  the  measure  of  damages  was  not  the  value 
of  the  labor  and  material  on  these  machines,  but  the  plaintiff's  damages  for  being  prevented 
from  completing  them  and  receiving  the  agreed  price — taking  into  account  whatever  the  un- 
finished machines  left  on  his  hands  were  worth  to  him.  Allen  v.  Thrall,  36  Vt.  711.  Sec 
Kugler  V.  Wiseman,  20  Ohio,  361. 

3  But  the  party  in  default  must  not  gain  by  his  default,  nor  the  other  lose  by  it.  Parties 
often  agree  to  give  excessive  prices  to  have  an  entire  contract  literally  performed,  when  a  par- 
tial performance  would  never  have  been  contracted  for.  And  though  the  contract  price,  as 
far  as  practicable  and  equitable,  furnishes  the  measure  of  damages  on  such  a  quantum  m.eiuit, 


244  CONTRACTS.  [CH.    VII. 

And  where  the  phiintiffs,  contractors  on  a  railroad,  were 
stopped  by  the  defendants,  and  it  was  impracticable  to  ascer- 
tain what  sum  would  be  due  at  the  prices  stipulated  in  the 
contract,  because  when  the  work  was  stopped  a  large 
[223]  portion  of  it  was  in  such  an  unfinished  state  as  to  be  in- 
capable of  measurement,  the  plaintiffs  were  held  entitled 
to  recover  as  on  a  qnantvm  meruit,  without  reference  to  the  rate 
of  compensation  specified  in  the  contract.  *  ^ 

Work  Stopped  by  the  Other  P.\rty.  —  So,  also,  if  the  con- 
tract is  rescinded,  one  party  stopping  the  work  while  the  other 
is  ready  to  proceed.  In  this  case  he  is  at  libery  to  prove  the 
value  of  his  services ;  but  the  contract  is,  nevertheless,  not  to 
be  altogether  disregarded.^     So,  where  the  plaintiff*  had  agreed 

*  Derby  v.  Johnson,  21  Verm.  K.  17. 

and  tlie  defaulting  party  can  in  no  case  recover  more,  yet  he  can  have  his  quantum  meruit  only, 
and  is  not  entitled  to  the  contract  price  for  what  is  worth  less.  See  Allen  v.  M'Kibben,  5  Mich. 
449.     But  compare  Western  v.  Sharp,  14  B.  Monr.  (Ky.)  177. 

See  Hollinsead  v.  Mactier,  13  Wend.  276,  where  the  parties  entirely  departed  from  the 
specitications  of  the  contract. 

It  is  the  duty  of  a  contractor  who  has  undertaken  a  piece  of  work,  such  as  the  erection  of  a 
house  for  a  specified  price  but  without  specification  as  to  the  manner  or  style  of  the  work, 
when  he  proposes  to  do  any  part  of  it  in  a  more  costly  style  than  would  be  justified  by  the 
agreed  price,  to  inform  the  employer  of  the  difference  in  cost.  The  employer  \\a.s  prima  facie  a 
right  to  suppose,  unless  apprised  of  the  contrary,  that  every  proposition  as  to  different  parts  of 
the  work  is  made  under  the  contract  for  the  whole,  and  is  intended  merely  to  present  him  with 
a  choice  of  modes  within  that  contract.  To  get  rid  of  this  inference  the  contractor  must  show, 
either  that  he  notified  his  employer  that  his  proposition  was  a  departure  from  the  original  de- 
sign and  contract,  and  would  be  attended  with  increased  cost,  or  that  its  character  necessarily 
gave  him  this  information.  As  to  costly  work  done  in  his  absence,  and  in  a  manner  not  previ- 
ously approved  by  him,  it  is  not  enough  to  show  that  on  his  return,  he  was  pleased  with  its 
appearance,  and  did  not  order  it  to  be  removed. 

The  rule  sanctioning  payments  for  alterations  and  additions  not  originally  contemplated,  as 
far  as  the  work  can  be  traced  under  the  contract  must  be  so  applied  as  not  to  violate  the  above 
princi])les.  Nor,  it  seems,  should  extra  work,  either  in  quantity  or  quality,  unless  done  under 
an  express  agreement  or  on  a  statement  of  the  price,  be  charged  for  at  a  greater  rate  in  rel'er- 
ence  to  the  measure  and  value  price  of  such  work  than  the  contract  bears  to  the  measure 
and  value  price  of  the  work  contracted  to  be  done.  See  Jones  v.  Woodbury,  1 1  B.  Monroe, 
167. 

1  And  where  there  is  a  special  contract  for  labor,  and  an  entire  sum  to  be  paid  for  it,  and  the 
plaintiff  has  performed  a  part  according  to  its  terms,  and  has  been  prevented  from  performing 
the  whole  by  the  defendant,  he  may  sue  either  on  the  contract  to  recover  damages  for  the 
breach  of  it,  or  in  general  assumpsit  to  recover  for  the  value  of  what  he  has  done.  If  he  sue 
on  the  contract  he  must  set  it  forth  specially,  and  then  his  damages  for  what  he  has  done  under 
it  niu>t  be  regulated  by  the  contract  price,  and  he  will  recover  such  a  proportion  of  the  whole 
of  that  price  as  the  work  he  has  done  bears  to  the  whole  work.  And  in  such  a  suit  he  may  re- 
cover whatever  other  damages  he  may  have  sustained  by  the  defendant's  breach;  as,  for  in- 
stance, if  the  contract  were  a  profitable  one,  the  profit  he  would  have  made  by  being  allowed 
to  complete  it,  and  tlie  damages  he  may  have  incurred  in  providing  labor  and  means  to  perform 
the  residue. 

If  he  choose  to  waive  the  contract  and  sue  in  general  assumpsit  for  work  and  labor,  then  his 
measure  of  damages  will  be  a  reasonable  compensation  for  the  work  actually  performed.  He 
is  not  then  limited  to  a  recovery  of  his;j;o  rata  share  of  the  agreed  price.  Chamber.in  y.  Scott, 
33  Vt.  80.  The  views  in  this  case  express,  we  think,  the  more  prevalent  rule.  But  see  Doo- 
little  V.  McCullough,  12  Ohio  St.  360  [infra). 

^  So  where  one  who  has  contracted  to  perform  or  construct  a  work  is  wrongfully  prevented 
by  the  employer  from  completing  it,  the  measure  of  damages  is  the  difi^crence  between  the  price 
agreed  to  be  paid  for  the  work,  and  what  it  would  have  cost  the  plaintiff  to  complete  it.  Myers 
V.  The  York  &  Cumberland  R.  R.  Co.  2  Curtis'  C.  C.  R.  28 ;  Durkee  v.  Mott,  8  Barb.  (N. 


CH.    VII.]  PART   PERFORMANCE.  245 

with  the  defendants  to  make  a  section  of  an  aqueduct,  to  he 
paid  one  dollar  per  cubic  yard  for  rock  excavation,  the  defend- 
ants stopped  the  work  when  about  half  of  it  was  done.  The 
plaintiff'  proved  that  he  had  lost  on  the  part  of  the  work  which 
he  had  executed  (that  being  the  most  expensive),  estimating  it 
at  the  contract  price  of  one  dollnr  per  yard,  the  sum  of  $4G,- 
800,  and  that  he  would  have  made  a  profit  on  that  portion  of 
the  contract  which  remained  to  be  executed  when  the  work 
was  suspended,  equal  to  the  amount  of  his  loss  on  the  work 
done  ;  and  it  was  held  that  he  was  entitled  to  recover  that  sum, 
$46,800.  *i        • 

*  Clark  r.  The  Mayor,  &c.  3  B.irb.  S.  C  rescinded,  and  sues  for  -work  and  labor  gener- 

R.   288.     This  case  was  reversed  on  appeal,  4  ally,  he  cannot  recover  jirofits,  and  the  rule  of 

Comstock,  338,  on  the  ground  that  where  the  damages  is  the  actual  value  of  what  has  been 

contractor  elects  to  consider  the  contract  as  done. 

y.)  423.  In  an  action  for  such  a  breach  of  contract,  evidence  by  the  defendant  to  show  that 
the  fulfillment  of  the  contract  would  have  cost  the  ]daintiff  more  than  he  was  to  receive  from 
the  defendant,  is  proper.     Durkee  v.  Mott,  8  Barb.  (N.  Y.)  423. 

But  where  the  defendants  willfully  embarrass  and  delay  the  plaintiffs,  so  that  the  contract 
which  would  have  been  profitable  on  the  original  estimates  has,  in  consequence  of  such  conduct, 
become  the  reverse,  the  original  principles  and  mode  of  estimate  may,  at  the  plaintiff's  election, 
be  departed  from,  and  he  may  recover  under  a  quantum  meruit.  Merrill  v.  Jthaca  &  Oweo-o  R. 
R.  Co.  16  Wend.  586. 

So  in  executory  contracts,  a  party  exercising  the  power  he  possesses  of  stopping  the  other's 
performance  by  an  explicit  order,  subjects  himself  to  such  damages  as  will  compensate  the 
other  for  being  stopped  at  that  point.  In  the  case  of  a  refusal  to  accept  goods  contracted  for, 
the  measure  of  damages  would  be  the  difference  between  the  price  stipulated  for  the  goods  not 
delivered  and  what  it  would  cost  to  furnish  and  deliver  them.  Danforth  v.  Walker,  37  Vt. 
239. 

^  In  this  case  Mr.  Justice  Pratt,  in  delivering  the  opinion  of  the  Court  of  Api)eals,  after  say- 
ing that  "when  parties  deviate  from  the  terms  of  a  special  contract,  the  contract  price  will,  so 
far  as  applicable,  be  the  rule  of  damages,"  lays  down  the  rule  since  adopted  by  the  Supreme 
Court  of  Vermont  (Chamberlin  v.  Scott,  supra),  and  adds,  "  But  when  the  contract  is  termi- 
nated by  one  party  against  the  consent  of  the  other,  the  latter  will  not  be  confined  to  the  con- 
tract price,  but  may  bring  his  action  for  a  breach  of  the  contract,  and  recover  as  damages  all 
that  he  may  lose  byway  of  profits  in  not  being  allowed  to  fulfill  the, contract;  or  he  may 
waive  the  contract  and  bring  his  action  on  the  common  counts  for  work  and  labor  generally, 
and  recover  what  the  work  done  is  actually  worth." 

The  Supreme  Court  of  Ohio,  in  discussing  this  decision,  dissent  from  these  views  and  de- 
clare it  as  a  rule  in  all  cases  that  "  the  express  contract  furnishes  the  measure  of  damages  to 
the  extent  of  the  evidence  it  affords,  and  to  the  same  extent  as  in  cases  where  the  contract  con- 
tinues in  force  but  remains  neglected  and  unperformed  by  the  defendant,"  and  that  this  rule 
remains  the  same  notwithstanding  the  contract  was  terminated  by  the  defendant  against  the 
plaintift"s  consent.     Doolittle  v.  SicCullough,  12  Ohio  State,  360. 

Where  one  sues  to  recover  for  his  damages  in  manufacturing  an  article  (as  a  steam-engine), 
which  has  been  countermanded,  the  measure  of  his  damages  is  not  simply  the  value  of  his 
labor  ;  the  materials  may  have  been  incresised  in  value  by  his  labor,  in  which  case  a  propor- 
tionate deduction  from  his  claim  should  be  made ;  or  they  may  have  been  diminished  in 
value,  in  which  case  his  damage  is  to  that  extent  enhanced.  The  jury  are  to  determine  the 
enhancement  or  diminution,  and  assess  the  damages  accordingly.  Hosraer  v.  Wilson,  7  Mich. 
294.         , 

Where  the  defendants  agreed  at  a  fixed  price  to  convey  six  vessel  loads  of  lumber  from  Sag- 
inaw to  Chicago  —  one  in  August,  two  in  September,  two  in  October,  and  one  in  November, 
and  carried  five  only  —  one  in  August,  one  in  September,  one  in  October,  and  two  in  Novem- 
ber —  and  freight  rose  in  October  and  largely  in  November,  and  there  was  no  evidence  of  any 
agreement  of  the  parties  to  apply  the  extra  cargo  to  the  default  in  September  or  October,  it 
was  held  that  the  defendants  had  a  right  to  have  the  extra  cargo  carried  in  November,  and 
which  had  been  accepted  by  the  plaintiffs,  stand  as  a  substituted  performance  for  the  cargo  they 
had  failed  to  carry  in  October,  and  that  the  plaintiffs  would  be  entitled  to  such  damages  only 
as  thev  had  sustained  by  the  defendants'  failure  to  carry  one  of  the  September  cargoes.  Lord 
V.  Strong,  6  Mich.  61. 


246  CONTRACTS.  [CH.    VII. 

Property  Deliverable  at  a  Future  Day.  —  It  is  proper  here 
to  notice  genenilly,  in  regard  to  executory  contracts  for  the 
dehvery  of  property  at  a  future  day,  that  if  the  article  does  not 
come  up  to  the  agreement,  the  vendee  may  return  it  and  sue  for 
damages  ;  differing  in  this  respect  from  such  sales  with  war- 
ranty, when  if  the  warranty  is  broken  the  party  cannot  return 
the  article,  but  is  left  to  his  action  on  the  agreement*  We  shall 
have  occasion  to  notice  this  again  when  we  come  to  speak  of 
warranty  of  personal  property. 

Contract  for  Sermce.  —  In  Georgia,  it  has  been  held  in  an 
action  brought  by  the  overseer  of  a  plantation  engaged  for  a 
limited  time,  and  dismissed  without  cause,  that  his  remedy  was 
threefold :  that  he  might  either  bring  an  action  at  once  for  any 
special  injury  sustained  by  reason  of  the  breach  of  the  contract; 

or,  secondly,  that  he  might  wait  till  the  end  of  the  period 
[224]  for  which  he  was  engaged,  and  recover  his  whole  wages; 

or,  thirdly,  that  he  might  treat  the  contract  as  rescinded, 
and  recover  as  on  a  quantum  meruit,  for  the  time  and  labor  actu- 
ally expended.! 

Arbitration.  —  In  regard  to  contractors  for  works,  another 
question  sometimes  presents  itself,  of  great  importance  to  the 
amount  of  recovery ;  and  it  is  settled,  that  where  the  parties 
agree  that  the  estimate  of  any  third  party  shall  be  conclusive  on 
the  question  of  remuneration,  the  courts  will  so  treat  it.  If,  in- 
deed, by  fraud  or  collusion,  the  arbitrator  selected  refuses  to 
make  an  estimate,  then  the  plaintiff  may  resort  to  other  testi- 
mony. But  he  cannot  do  this  so  long  as  the  defendant  observes 
and  insists  on  the  contract.^ 

Prospective  Damages.  —  A  question  of  interest  and  import- 
ance is  sometimes  presented,  in  regard  to  prospective  damages, 
or  damages  wdiich  accrue  after  the  suit  is  brought.  We  have 
already  had  occasion  to  take  notice  of  this  matter.§ 

Continuing  Agreements.  —  The  same  point  arises  in  regard  to 
continuing  agreements,  or  agreements  to  do  specified  acts  at 
certain  successive  periods.  In  these  cases,  it  has  been  doubted 
whether  the  damage  should  be  assessed  as  at  the  time  of  the 

*  Freeman  v.  Clute,  3  Barb.  S.  C.  R.  424.  Har.  2.33  ;  Canal   Trustees  v.  Lynch,  .5  Gil- 

t  Rogers  V.  Purhiim,  8  Cobb  Ga.  R.  198.  man  (111.),  521 ;  Merrill  j;.  Gore,  29  Maine  R. 

\  Hotham  v.  East  India  Co.  1  T.  R.  638 ;  346. 

Easton  v.  Penn.  &  Oliio  Canal  Co.  13  Ohio,  §  Ante,  104. 

79  ;  and  Randel  v.  Ches.  &  Del.  Canal  Co.  1 


CH.   VII.]  WHEN   ENTIRE.  247 

first  breach,  or  whether  the  whole  period  of  the  contract  is  to  be 
gone  through,  and  an  estimate  made  of  the  damages  sustained, 
with  reference  to  each  period  fixed  for  performance.  This, 
again,  depends,  to  a  certain  extent,  on  another  question,  whether 
the  contract  will  admit  of  more  than  one  action  being  brought 
on  it,  or  whether  the  first  recovery  is  conclusive  of  the  plaintiff's 
rights.  It  is  an  ancient  rule  of  our  law  that  one  action  only  can 
be  maintained  for  the  breach  of  an  entire  contract ;  and  a  judg- 
ment obtained  by  the  plaintiff  in  one  suit  may  be  pleaded  in  bar 
of  any  second  proceeding ;  *  but  the  difficulty  is,  to  determine 
in  what  cases  the  contract  is  entire.^  The  question  was  first 
presented  on  contracts  to  pay  debts  by  installments.  Debt  was 
then  the  only  form  of  action  to  recover  a  sum  certain ;  and  it 
was  held  that  on  a  bond  or  other  contract  to  pay  divers  sums  on 
divers  days,  no  action  of  debt  would  lie  until  all  the  days 
were  past.t  So  stood  the  law  until  the  reign  of  Elizabeth,  [225] 
when  the  decision  in  Slade's  case  introduced  the  action  of 
assumpsit  into  general  practice,  t  The  rule  was  then  modified  as 
regards  the  action  of  assumpsit,  and  in  cases  of  money  payable 
by  installments,  the  plaintiff*  was  allowed  to  proceed  upon  the  first 
defixult ;  but  it  was  still  held  that  the  judgment  was  a  full  satis- 
faction, and  the  plaintiff  therefore  recovered  damages  for  all  the 
prospective  breaches.  §  This  latter  rule  in  regard  to  assumpsit 
was  further  modified  by  a  decision  made  in  the  reign  of  Charles 
n.,  when,  in  an  action  on  award  to  pay  several  sums  at  several 
times,  the  court  held  that  an  action  might  be  brought  for  each 
sum  when  due,  and  that  the  plaintiff  should  recover  damages 
accordingly,  and  have  a  new  action  as  the  other  sums  became 
due,  totics  quoties.\\     The  rule  in  debt,  however,  appears  unal- 

*  Badger  v.   Titcomb,  15  Pick.  409 ;  Ben-     Cro.  Eliz.  807  ;    Milles  v.  Milles,   Cro.   Car. 
dernagle  v.  Cocks,  19  Wend.  207  ;  Rudder  v.     241. 
Price,  1  H.  Bl.  .547.  J  4  Coke's  Rep.  94. 

t  Fitzh.  Nat.    B.   131  ;    Taylor  v.   Foster,         §  Beckwith  v.  Nott,  Cro.  Jac.  504. 

II  Cooke  V.  Whorwood,  2  Saund.  337. 

1  If  a  plaintiff  recover  compensation  for  part  of  a  cause  of  action,  it  satisfies  the  whole. 
Town  of  Marlborough  v.  Sisson,  31  Conn.  332;  Baker  Ex'r  v.  Baker,  4  Dutch.  (N.  J.) 
13;  Veghte  v.  Hoagland,  5  Dutch.  (N.  J.)  125.  But  a  i-ecovery  of  nominal  damages  for  the 
infringement  of  a  right  will  not  bar  a  suit  for  actual  damages  sustained  .after  the  bringing 
of  the  fii-st  suit.  Successive  suits  for  actual  damages  may  be  brought  from  time  to  time  as 
the  damages  are  sustained,  and  in  each  suit  the  party  may  recover  such  damages  as  he  has 
sustained  before  its  commencement  not  barred  by  a  previous  recovery.  McConnel  v.  Kibbe, 
33  111.  175. 

If  one  contr.acts  to  serve  another  for  one  year  at  a  stipulated  sum,  pay.able  monthly,  and 
is  discharged  without  .any  fault  on  his  part  before  the  expiration  of  the  year,  he  may  treat 
the  contract  as  still  subsisting,  and  sue  in  assumpsit  for  wages  due  according  to  its  terms;  or 
he  may  consider  it  rescinded,  and  sue  for  unliquidated  damages  for  its  breach.  If  he  sues  on 
the  contract,  he  can  only  recover  the  wages  due  by  its  terms  before  the  institution  of  the  suit ; 
if  for  damages  for  breach  of  contract,  he  is  entitled  to  recover  the  actual  damage  sustained  up 
to  the  trial ;  but  the  sum  specified  in  the  contract  is  not  of  itself  necessarily  the  exact  measure 
of  such  actual  damage.  Fowler  v.  Armour,  24  Ala.  194.  But  compare  Goodman  v.  Pocock, 
15  Q.  B.  576. 


248  CONTRACTS.  [ciI.    VII. 

tered.*  So  stands  the  m.itter  in  regard  to  agreements  for  the 
payment  of  money  at  specific  future  periods.  In  New  York 
the  rule  which  enforces  the  indivisibihty  of  entire  demands  has 
been  apphed  to  open  accounts  for  goods  sold ;  and  it  has  been 
held  that  the  whole  of  such  an  account  must  be  recovered,  if  at 
all,  in  one  suit.f  But  in  Massachusetts  the  doctrine  of  this 
case  has  been  denied.^ 

Agreements  to  do  Various  Acts.  —  The  question  becomes 
more  complicated  when  we  approach  the  consideration  of  agree- 
ments to  do  specific  acts  at  various  prospective  periods.  In  a 
case  in  New  York,  where  the  defendant  had  covenanted  with  the 
plaintiff  to  keep  a  certain  gate  in  repair,  and  to  use  common 
care  in  shutting  it  when  passing  and  repassing,  it  was  held  that 
if  the  gate  was  left  unrepaired  or  open  the  defendant  would  be 
responsible  in  an  action  on  the  covenant,  and  that  the  true 
measure  of  damages  would  be  the  amount  of  the  plaintiff's  loss 
by  the  breach  proved ;  that  for  every  second  breach  a  fresh 
action  would  lie  ;  that  a  refusal  to  rebuild  the  gate  did  not 
amount  to  a  total  and  final  breach  of  the  covenant,  nor  could 

the  damages  recovered  in  a  suit  brough't  for  one  breach 
[226]  be  presumed  to  have  been  given  as  a  compensation  for 

the  non-performance  of  the  covenant  through  all  future 
time,  so  as  to  bar  further  suits.  § 

But  it  has  been  held  by  the  same  court,  that  all  the  breaches 
which  have  actually  taken  place,  must  be  embraced  in  the  first 
suit ;  and  that  even  if  they  are  not,  a  second  suit  will  not  lie  for 
them.||^  In  a  recent  case  in  New  York,  a  bond  had  been  given 
conditioned  to  furnish  the  plaintiffs  their  support  during  their 
natural  lives ;  and  it  was  held  that  a  failure  by  the  obligor  to 
provide  for  the  obligee  according  to  the  covenant,  amounted  to 
a  total  breach,  and  that  full  and  final  damages  might  be  recov- 
ered.^l  It  appears,  therefore,  that  in  debt  for  money  payable  by 
installments  the  action  wiU  not  lie  till  all  the  sums  are  due,  but 
that  in  assumpsit  an  action  may  be  brought  for  each  sum  as  it 
becomes  payable  ;  that  in  agreements  to  do  certain  acts  for  a 
continuing  period  of  time,  an  action  may  be  brought  for  each 

'  *  Rudder  v.  Price,  1  H.  Bl.  547.  stock,  86  ;  and  see  also.  Fish  v.  Folley,  6  Hill, 

t  Guernsey  v.   Carver,  8  Wend.  492  ;  Ben-  54. 

dernagle  v.  Cocks,  19  Wend.  207;  Clark  v.  \\  Bendernagle    v.    Cocks,    19   Wend.   207; 

Jones,  1  Denio,  516.  Bristowe  v.  Fairclough,  1  M.  &  G.  143  ;  Pin- 

t  Badger  v.  Titcomb,  15  Pick.  409.  ney  v.  Barnes,  17  Conn.  420. 

§  Grain  v.  Beach,  2  Barb.  S.   C.  R.  120,  1  Shaffer  v.  Lee,  8  Barb.   S.   C.  R.   413, 

and  S.  C.  on  appeal.  Beach  v.  Grain,  2  Com-  where  the  cases  are  collected  at  large. 

1  See  Colvin  v.  Corwin,  15  Wend.  557. 


CH.    Vn.]  WHEN   ENTIRE.  249 

breach,  and  damages  for  each  of  the  breaches  separately  assessed, 
but  that  all  the  breaches  actually  committed  must  be  declared 
for  in  one  suit. 

Fluctuations  in  Value  during  Contract.  —  There  is  still 
another  class  of  cases,  namely,  where  the  contract  covers  a  long 
space  of  time,  and  during  that  period  the  value  of  the  thing  in 
controversy  has  fluctuated.  Thus,  in  a  case  in  New  York, 
which  we  have  already  had  occasion  to  notice  in  reference  to 
another  branch  of  our  subject,*  the  plaintiff,  in  1836,  agreed  to 
furnish  and  deliver  marble  to  build  a  city  hall,  at  successive 
periods  in  five  successive  years.  In  1837  the  defendants  refused 
to  receive  any  more,  and  it  was  shown  that  the  difference  be- 
tween the  cost  of  the  marble  and  the  contract  price,  which  was 
the  measure  of  damages,  had  fluctuated  considerably  in  the  five 
years.  On  this  state  of  facts  the  circuit  judge  charged,  that, 
"  In  fixing  damages  to  be  allowed  the  plaintifts,  the  jury  were  to 
take  things  as  they  were  at  the  time  the  work  was  suspended, 
and  not  allow  for  any  increased  benefits  they  would  have 
received  from  the  subsequent  fall  of  wages  or  subsequent  [227] 
circumstances."  And  of  this  opinion  was  the  majority 
of  the  court,  on  a  motion  for  a  new  trial. 

Nelson,  C.  J.,  who  delivered  the  leading  opinion,  said :  — 

"  It  has  been  argued  that,  inasmuch  as  the  furnishing  of  the  marble  would 
have  run  through  a  period  of  five  years,  of  which  about  one  year  and  a  half  only 
had  expired  at  the  time  of  the  suspension,  the  benefits  which  the  party  might 
have  realized  from  the  execution  of  the  contract,  must  necessarily  be  specula- 
tive and  conjectural ;  the  court  and  jury  having  no  certain  data  upon  which  to 
make  the  estimate.  If  it  were  necessary  to  make  the  estimate  upon  any  such 
basis,  the  argument  would  be  decisive  of  the  present  claim.  But  in  my  judg- 
ment no  such  necessity  exists.  Where  the  contract,  as  in  this  case,  is  broken 
before  the  arrival  of  the  time  for  full  performance,  and  the  opposite  party  elects 
to  consider  it  m  that  light,  the  market  price  on  the  day  of  the  breach  is  to  govern 
in  the  assessment  of  damages.  In  other  words,  the  damages  are  to  be  settled  and 
ascertained  according  to  the  existing  state  of  the  market  at  the  time  the  cause  of 
action  arose,  and  not  at  the  time  fixed  for  full  performance.  The  basis  upon 
which  to  estimate  the  damages,  therefore,  is  just  as  fixed  and  easily  ascertained 
in  cases  like  the  present,  as  in  actions  predicated  upon  a  failure  to  perform  at 
the  day."     Page  71. 

And  Bronson,  J.,  said  :  — 

"There  may  have  been  fluctuations  in  the  prices  of  labor  and  materials,  be- 
tween the  day  of  the  breach  and  the  time  when  the  contract  was  to  have  been 

*  Masterton  v.  Mayor  of  Brooklyn,  7  Hill,  62,  ante,  76. 


250 


CONTRACTS. 


[CH.    VII. 


fully  performed,  and  this  makes  the  question  upon  which  my  brethren  are  not 
agreed.  I  concur  in  opinion  with  the  chief  justice,  that  such  fluctuations  in 
prices  should  not  be  taken  into  the  account  in  ascertaining  the  amount  of  dam- 
ages, but  that  the  court  and  jury  should  be  governed  entirely  by  the  state  of  things 
which  existed  at  the  time  the  contract  was  broken.  This  is  the  most  plain  and 
simple  rule  ;  it  will  best  preserve  the  analogies  of  the  law,  and  will  be  as  likely 
as  any  other  to  do  substantial  justice  to  both  parties."     Page  76.* 

[228]       The  decision  in  this  case  has  been  adhered  to  in  New 
York  ;  t  and  it  has  been  cited  with  approbation  and  its 
authority  recognized  in  Louisiana-^  ^ 

In  a  case  in  Vermont,  the  rule  was  laid  down  as  follows  :  — 
The  defendants,  a  bridge  company,  had,  in  September,  1830, 
agreed  with  the  plaintiffs  to  keep  a  bridge  in  repair  for  twelve 
years,  on  the  plaintiffs  paying  twenty-five  dollars  every  year. 
The  plaintiffs  paid  the  annual  sum  till  1838,  when  the  defend- 


*  Boarilsley,  J.,  however,  dissented,  saying, 
—  "  The  plaintiffs  were  not  bound  to  wait  till 
the  period  had  elapsed  for  the  complete  per- 
formance of  the  agreement,  nor  to  make  suc- 
cessive offers  of  performance,  in  order  to  re- 
cover all  their  damages.  They  might  regard 
the  contract  as  broken  up  so  far  as  to  absolve 
them  from  making  further  efforts  to  perform, 
and  give  them  a  right  to  recover  full  damages 
as  for  a  total  breach.  I  am  not  prepared  to 
say  that  the  plaintiffs  might  not  have  brought 
successive  suits  on  this  covenant,  had  they 
from  time  to  time  made  repeated  offers  to  per- 
form on  their  part,  which  were  refused  by  the 
defendants ;  but  this  the  plaintiffs  were  not 
bound  to  do." 

"  There  can  be  no  serious  difficulty  in  assess- 
ing damages  according  to  the  principles  which 
have  been  stated.  The  contract  was  made  in 
1836  ;  and,  according  to  the  testimony,  about 
five  years  would  have  been  a  reasonable  time 
for  its  execution.  That  time  has  gone  by. 
The  expense  of  executing  the  contract  must 
necessarily  depend  upon  the  prices  of  labor 
and  materials.  If  prices  fluctuated  during  the 
period  in  question,  that  may  be  shown  by  tes- 
timony. In  this  respect  there  is  no  need  of  re- 
sorting to  conjecture ;  for  all  the  data  neces- 
sary to  form  a  correct  estimate  of  the  entire 
expense  of  executing  the  contract,  can  now  be 
furnished  by  witnesses. 

"  If  the  cause  had  been  brought  to  trial  be- 
fore the  time  for  completing  the  contract  ex- 
pired,  it  would  have  been  impracticable  to 


make  an  accurate  assessment  of  the  damages. 
This  is  no  reason,  however,  wliy  the  injured 
party  should  not  have  his  damages  ;  although 
the  difficulty  in  making  a  just  assessment  in 
such  a  case,  has  been  deemed  a  sufficient 
ground  for  decreeing  specific  performance. 
No  rule,  which  will  be  absolutely  certain  to 
do  justice  between  the  parties,  can  be  laid 
down  for  such  a  case.  Some  time  must  be 
taken  arbitrarily,  at  which  prices  are  to  be 
ascertained  and  estimated ;  and  the  day  of 
the  breach  of  the  contract,  or  of  the  com- 
mencement of  the  suit,  should  perhaps  be 
adopted  under  such  circumstances.  But  we 
need  not,  in  the  present  case,  express  any 
opinion  on  that  point.  No  conjectural  esti- 
mate is  required  to  ascertain  what  would  have 
been  the  expense  of  a  complete  execution  of 
this  contract ;  but  the  state  of  the  market,  in 
respect  to  prices,  is  now  susceptible  of  ex- 
plicit and  intelligible  proof  And  where  that 
is  so,  it  seems  to  me  unsuitable  to  adopt  an 
arbitrary  period  ;  especially  as  the  estimate 
of  damages  must,  in  any  event,  be  somewhat 
conjectural." 

In  Shaffer  v.  Lee,  8  Barb.  S.  C.  K.  412,  Mr. 
Justice  Hand  said  of  this  case,  "As  I  under- 
stand the  opinions  delivered,  all  the  judges  con- 
sidered the  plaintiff  entitled  to  recover  entire 
and  final  damages  for  the  non-fulfillment." 

t  N.  Y.  &  H.  R.  R.  Co.  V.  Story,  6  Barb.  S. 
C.  R.  419. 

t  Seaton  v.  Second  Municipality,  3  La.  Ann. 
R.  44. 


1  So  in  Alabama.  And  where  in  that  State,  the  plaintiff  had  agreed  to  let  the  defendants 
have  all  the  pine  timber  on  his  lands,  suitable  for  good  lumber,  and  the  defendants  to  saw  it 
into  lumber,  sell  it  as  soon  as  they  could,  and  pay  the  plaintiff  one  fifth  of  the  gross  proceeds  of 
the  lumber  sold  and  collected  by  them,  it  was  held  that  for  the  breach  of  this  contract  by  the 
defendant  in  not  sawing  all  the  lumber,  but  one  action  lay,  in  which,  notwithstanding  the  pe- 
riod allowed  for  the  performance  had  not  expired  at  the  time  of  the  breach,  he  was  entitled  to  the 
damages  resulting  from  the  prospective  as  well  as  the  actual  failure,  to  be  assessed  on  the  basis 
of  value  at  the  time  of  the  breach.    Fail  v.  McRee,  36  Ala.  (N.  S.)  61. 


CH.    VII.]  INDIVISIBLE   AND    SEVERABLE.  251 

ants  ceased  to  repair ;  and  the  judge  charged  at  the  trial,  that 
the  jury  "  should  limit  their  inquiries  to  the  time  when  both 
the  parties  ceased  in  fact  to  act  under  the  contract."  But  on 
motion  for  a  new  trial,  the  court  said,  "  The  rule  of  damages  in 
this  case  should  have  been,  to  give  the  plaintiffs  the  diflerence 
between  what  they  were  to  pay  the  defendants,  and  the  prob- 
able expense  of  performing  the  contract,  and  thus  assess  the 
entire  damages  for  the  remaining  twelve  years.* 

Distinction  between  Indivisible  and  Severable  Contracts. — 
Perhaps,  on  principle,  a  distinction  should  be  made  among 
agreements  of  this  class.  Where  they  are  intrinsically  indi- 
visible, as  in  the  case  of  a  building  contract,  for  instance,  one 
refusal  may  properly  be  considered  as  an  absolute  breach  ;  and 
then  there  are  very  strong  reasons  for  adopting  the  decision  of 
the  Supreme  Court  of  New  York.  As  a  general  rule,  it  is  the 
time  of  breach  which  fixes  the  liability  in  cases  of  per- 
sonal contract;  if  the  periods  specified  in  the  contract  [229] 
have  not  arrived  before  the  trial  of  the  cause,  any  effort 
to  fix  the  rights  of  the  parties  at  those  various  times,  must  be 
mere  matter  of  conjecture ;  and  '■^  -probable  expense,''  in  the  lan- 
guage of  the  decision  just  cited,  is  neither  a  precise  nor  a  safe 
direction  for  a  jury.  But  if  the  contract  is,  in  its  nature,  caj)a- 
ble  of  division,  as,  to  deliver  the  crops  of  a  farm  for  several 
successive  years,  and  if  the  periods  have  arrived  before  suit 
brought,  there  seems  no  reason  why  several  actions  may  not  be 
brought  for  every  refusal  to  perform,  nor  why  the  damages 
should  not  be  estimated  as  at  every  period  fixed  for  perform- 
ance.! ^ 

With  the  modifications  thus  noticed,  the  rule  is  adhered  to, 

*  Royalton   v.   R.  &  W.  Turnpike  Co.   14  Stuart,  607.     In  this  last  case,  the  vice-chan- 

Vermont.  311.  cellor  said,  "The  profit  on  the  contract  being 

t  In    Eniiland,  it  has   been   several   times  to  depend  on  future  events,  cannot  be  correctly 

held  in  chancery,  in  regard  to  future  agree-  estimated  in  damages,  where  the  calculation 

ments,  that  the  difficulty  of  arriving   at  any  must    proceed    upon    conjecture.       Damages 

true  rule  of  damages  is  a  good  ground  for  a  might  be  no  complete  remedy,  being  to  be  cal- 

decree   for  specific   performance.     Buxton   v.  culatcd  merely  by  conjecture."    This  language 

Lister,   3   Atk.  383 ;  and    Taylor  v.  Neville,  seems  to  imply  that,  at  law,  the  whole  period 

cited    therein ;    Ball   v.  Coggs",    1    Bro.    Pari,  of  the  contract  would  be  inquired  into,  on  the 

Cas.   140  ;  and  Adderley  i'.  Dixon,  1  Sim.  &  principle  of  the  Vermont  decision. 


1  An  agreement  was  made  that  the  plaintiff  should  enter  into  the  defendants'  employment 
for  the  sale  of  wines  on  commission  ;  tlie  agreement  to  continue  in  force  five  years,  and  the  de- 
fendants guaranteeing  the  ])laintitf  .£600  per  annum  as  a  minimum  revenue  from  the  business 
during  its  continuation.  Held  that  the  plaintiff  might  sue  in  any  year  during  the  continuance 
of  the  agreement  for  breaches  in  any  former  year  ;  but  that  if,  before  its  expiration,  there  was 
an  entire  dismissal  from  the  service,  he  should  include  in  one  action  the  whole  gravamen  he 
would  suffer  by  such  a  breach  of  contract.     Clossman  v.  Lacoste,  28  Eng.  L.  &  E.  140. 


252  CONTRACTS.  [CH.    VII. 

that  the  contract  furnishes  the  standard  of  rehef ;  ^  and  the 
other  general  rule  is  equally  true,  that  compensation  will  only 
be  given  for  actual  loss  sustained.^  This  principle  we  have 
already  had  occasion  to  consider  when  discussing  the  subject  of 
nominal  damages  ;  *  and  it  is  one  w^hich  applies  to  cases  of  tort, 
as  well  as  of  contract.  So,  no  action  will  lie  for  a  conspiracy, 
unless  the  plaintiff  sustains  injury  from  the  transaction.! 

Actual  Loss  the  Basis  of  Compensation.  —  This  rule  is  a  wise 
one  —  one  that  should  be  kept  carefully  and  constantly  in  view. 
There  are  many  cases  where  the  preventive  power  of  courts  of 
justice  may  be  exercised  most  beneficially,  and  in  those  cases, 
future  events  must  be  taken  into  consideration ;  but  when  the 
plaintiff  applies  for  pecuniary  redress,  nothing  can  as  a  general 
rule  be  more  reasonable  than  to  require  him  to  show  that  he 
has  actually  sustained  injury.  There  would  be  neither  wisdom 
nor  justice  in  compelling  a  defendant  to  pay  the  plaintiff  money 
as  compensation  for  a  loss  which  he  has  not  incurred,  and  may 
never  sustain.  These  remarks,  of  course,  do  not  apply  where 
a  liability  has  attached  that  may  fairly  be  regarded  as  inevit- 
able, and  sure  to  be  responded  to  by  the  party  charged. 

Exceptions.  —  But  to  this  rule  there  are  exceptions  to  be 
noticed  ;  and  the  principal  one  grows  out  of  the  question  how 
far  the  plaintiff  can  recover  for  loss  which  he  is  legally  liable  to 
sustain.  A  mere  probability  of  future  loss  is  an  insufficient 
basis  of  a  claim  for  legal  relief.  But  the  case  may  be  different 
where  the  plaintiff  is  fixed  with  a  legal  liability  to  loss  which, 
whenever  consummated,  the  defendant  will  be  bound  to  make 
good.  The  question  here  is,  can  suit  be  brought,  or  a  recovery 
had,  before  the  injury  is  actually  consummated. 

Polices  of  Insurance.  —  Some  exceptions  of  this  kind  to  the 
general  rule,  which  requires   proof  of  actual  loss,  have  been 

*  J.nte,  ch.  ii.  t  Cotterell  v.  Jones,  11    C.  B.  713;    Hut- 

chins  V.  Hutchins,  7  Hill,  104. 

1  The  cases  where  consequential  damages  are  allowed  (ante,  ch.  iii.)  also  furnish  exceptions 
to  this  general  rule.  But  if  the  contract  does  not  itself  furnish  the  measure,  there  must,  to 
recover  more  than  nominal  damages,  be  evidence  that  an  actual  substantial  loss  has  been  sus- 
tained.    Adams  Express  Co.  v.  P^gbert,  36  Penn.  360. 

^  In  the  case  of  a  mixed  contract,  partly  continuing  and  partly  executed,  where  a  raih-oad 
company  had  engaged  to  constrtict  and  keep  in  repair  certain  "  cowpits "  on  the  plaintiff's 
land,  and  constructed  them  defectively,  but  the  plaintiff  did  not  remake  or  repair  tliem  himself, 
the  court  set  aside  a  judgment  for  the  .amount  it  would  have  cost  the  plaintiff  to  construct  and 
repair  them,  and  held  him  entitled  to  recover  only  the  damage,  if  any,  resulting  from  the 
defect.     The  Indiana  Central  Railway  Co.  v.  Moore,  23  Ind.  14. 


CH.    VII.]  ACTUAL   LOSS.  253 

made  in  actions  on  policies  of  insurance.  Thus  it  has  been 
held,  that  a  party  insured  can  recover  his  contributory  share  of 
general  average  from  the  underwriter,  although  he  has  not 
paid  it,  and  his  interest  in  the  voyage,  cargo,  freight,  or 
vessel  is  only  liable  to  pay  it.*  So  a  party  in  possession  [230] 
of  a  house,  under  a  contract  of  purchase,  can  recover  the 
whole  sum  insured  against  fire,  although  he  has  paid  but  a 
small  part  of  the  purchase  money,  and  is  only  liable  to  pay  the 
balance.!  So  the  re-assured  has  been  held  at  liberty  to  sue  and 
recover  from  the  re-assurer  the  full  amount  insured,  although 
the  re-assured  had  not  repaid  it,  and  from  his  insolvency  could 
not  by  possibility  do  so.J  ^  So  the  importer  has  been  allowed 
to  recover  from  the  underwriter  the  value  of  his  goods  de- 
stroyed by  fire,  including  duties,  though  the  duties  had  not 
been  paid.§ 

Other  Cases.  —  So,  too,  as  we  have  already  seen,||  the  de- 
faulting party  to  an  agreement  to  convey  land  has  been,  in 
England,  made  to  pay  the  attorneys'  and  brokers'  bills  for 
which  the  plaintiff  had  merely  become  liable.  So  in  Louisiana, 
the  sureties  in  a  sequestration  bond  have  been  adjudged  to  pay 
the  counsel  fees  for  which  the  plaintiff  in  the  original  suit  was 
only  liable.^ 

Other  analogous  decisions  have  been  made,  which  we  shall 
have  occasion  to  consider  when  we  come  to  the  subject  of  prin- 
cipal and  surety  ;**  but  it  appears  to  me,  that  the  principle  that 
actual  loss  should  be  sustained,  cannot  be  much  further  relaxed 
without  efiacing  the  line  which  separates  equitable  from  legal 
relief  As  a  general  rule,  the  latter  awards  damages  for  injury 
actually  done ;  anticipation  and  prevention  belong  to  equity. 

QuANTUivi  MERUIT.  —  We  have  thus  far  spoken  of  express  con- 

*  Phillips  on  Insurance.  as  to  the  nature  of  the  evidence  requisite  to 

t  The  ./Etna  Fire  Ins.  Co.  w.  Tyler,  16  Wend,  establish  his  loss,  —  whether  the  proof  must 

385.  be  definite  and  absolute,  so  as  to  amount  to 

t  Hone  ct  al.  v.  The  Mutual  Safety  Insur-  mathematical  certainty,  or  whether  the  tribu- 

ance  Co.  1  Sandford's  Sup.  Ct.  Rep.  137.  nal  should  be  satisfied  with  an  approximative 

§  Wolfe  V.  Howard  Ins.  Co.   1    Sandford's  conviction.      This  subject  we   shall   examine 

Sup.  Ct.  Rep.  124.  when  we  come  to  treat  of  evidence.     In  the 

II  Ante,  106.  mean  time,  I  shall   refer   the   reader   to   the 

TT  Jones  V.  Doles,  3  La.  Ann.  R.  588.  sagacious  observations  of  Mr.  Justice  Story, 

**  Vide  post.      But  the  rule  being  settled  in    Rogers  v.    Mechanics'  Insurance   Co.    1 

that  the  plaintiff  can  only  recover  for  actual  Story,  609. 

loss,  nice  questions  often  pi'esent  themselves 

1  So  the  assured  can  recover  the  full  amount  of  a  policy  of  insurance  "  on  all  passage 
money  "  for  a  certain  voyage,  though  all  the  passengers  were  lost  with  the  vessel,  and  the  com- 
pany may  not  in  fact  be  called  on  to  refund  all  the  passage  money  which  was  paid  in  advance. 
Ogden  V.  N.  Y.  Mutual  Ins.  Co.  8  Bosw.  248. 


254  CONTRACTS.  [CH.    VH. 

tracts  made  by  the  parties ;  we  have  still  to  speak  of  the  agree- 
ments which,  in  the  absence  of  any  express  stipulation,  the  law 
implies  from  a  given  state  of  facts.  For  property  transferred, 
or  services   rendered  by  one  to  another,  the   law   implies    a 

promise  to  pay  what  the  thing  or  the  property  is  worth.^ 
[231]  The  party  then  recovers,  to  use  technical  language,  on  a 

quantum  meruit  or  a  quantum  valehat ;  and  the  measure  of 
damages  becomes  a  question  of  evidence  as  to  the  value  of  the 
property  or  services.  Nor  can  this  rule  be  varied,  except  by 
express  agreement.  Thus,  if  a  father,  whose  infant  daughter 
was  employed  by  a  manufacturing  company,  forbade  them  to 
employ  her  any  longer,  and  gave  them  notice  that  if  they  did 
so  he  should  demand  a  given  smn  for  her  time  and  labor,  it  was 
held  in  an  action  of  assumpsit  against  the  company,  that  the 
notice  was  unavailing  to  fix  the  measure  of  compensation,  and 
that  he  could  only  recover  what  her  services  were  reasonably 
worth.*  ^ 

Forms  of  Action.  —  The  common-law  remedies  for  the  viola- 
tion of  contracts  are  furnished  by  the  actions  of  assumpsit, 
debt,  and  covenant,  according  to  the  form  of  the  agreement, 
whether  sealed  or  unsealed,  and  to  the  character  of  the  demand, 
whether  for  sums  certain,  or  for  an  undetermined  amount.  A 
line  of  division  more  satisfactory,  however,  than  that  resulting 
from  the  forms  of  actions  may  be  derived  from  the  character  of 
the  agreement  itself,  as  to  the  liquidation  of  the  damages. 
There  is  a  large  class  of  cases  where  the  parties,  either  by  direct 
language  or  by  the  use  of  the  technical  form  of  the  bond  and 

*  Adams  v.  Woonsocket  Co.  11  Met.  327. 

1  So  where  one  has  incurred  necessary  expense  or  sustained  damages  in  protecting  another's 
property  which  is  accidentally  beyond  the  owner's  control,  and  it  is  afterwards  reclaimed  by 
the  owner,  the  law  implies  a  promise  to  pay  the  expense  or  compensate  for  the  damage. 
Sheldon  v.  Sherman,  42  Bai-b.  (N.  Y.)  368.  The  same  principles  apply  in  the  cases  which 
sometimes  occur  where  the  law  implies  an  obligation  on  the  part  of  one  party  to  a  contract, 
corresponding  with  that  expressed  on  the  part  of  the  other.  So  where  the  plaintiff  and  de- 
fendant entered  into  a  written  contract  by  which  the  former  agreed  for  a  certain  sum  to  be  paid 
him  by  the  latter,  to  do  the  carpenter's  work  on  a  school-house  to  be  built,  and  furnish  and  use 
the  necessary  materials,  and  that  he  would  "  commence  said  work  and  proceed  therewith  with- 
out delay  and  in  such  a  manner  as  not  to  delay  the  contractor  for  the  mason  work,"  it  was 
held  that  this  covenant  implied  a  correlative  obligation  on  the  part  of  the  defendant  to  have 
his  building  in  readiness  for  the  plaintiff  to  perform  the  condition  ;  and  that  the  plaintiff 
having  sustained  damages  from  the  defendant's  delay  in  having  the  building  ready  for  him  to 
do  the  work,  could  maintain  an  action  to  recover  the  amount  of  his  damages,  in  which  was 
included  his  increased  expense  from  the  delay.  Allamon  v.  The  Mayor  of  Albany,  43  Barb. 
(N.  Y.)  33.  So  an  agreement  to  receive  as  part  of  the  purchase  money  of  land  the  purchaser's 
services  in  cutting  and  taking  away  wood,  implies  a  covenant  to  allow  him  to  go  on  the  land, 
for  the  breach  of  which  an  action  lies,  and  entitles  him  in  the  absence  of  proof  of  special  dam- 
ages to  recover  nominal  damages.     French  v.  Bent,  43  N.  H.  448. 

■■^  So,  in  an  action  for  work  and  labor  the  rule  of  damages  is  the  value  of  the  service  ren- 
dered, and  not  an  oral  agreement  as  to  wages  ruled  out  under  the  statute  of  frauds.  Emery 
V.  Smith,  46  N.  H.  161. 


CH.    VII.]  FORMS    OF    ACTION.  255 

penalty,  undertake  to  fix  the  amount  of  remuneration,  or  at 
least  to  determine  a  limit  which  it  shall  not  exceed.  This  class 
of  contracts  we  shall  consider  after  we  have  examined  those 
where  the  damages  are  entirely  at  large,  the  parties  not  having 
fixed  the  compensation  for  a  breach,  and  where  the  burden  of 
this  duty  is  thrown  entirely  upon  the  court.  While  adhering, 
however,  as  far  as  possible  to  this  division,  founded  on  the 
nature  of  the  contract,  it  is  impossible  altogether  to  disregard 
the  character  of  the  proceeding  in  which  the  question  is  pre- 
sented ;  for,  as  has  been  already  noticed,  and  as  we  shall  have 
frequent  occasion  to  see,  the  same  claim  may  be  presented  in 
very  different  forms,  and  the  measure  of  relief  will  vary  with 
the  action  made  use  of 

Account.  —  Of  the  action  of  account  it  would  be  superfluous 
to  take  any  extensive  notice  here.  "  It  is  laid  down  in  divers 
cases,"  says  Mr.  Sayer,  "  that  no  damages  are  recover- 
able in  it."  *  But  on  this  point  there  is  much  conflict  in  [232] 
the  old  books ;  and  inasmuch  as  the  proceeding  in  its 
original  shape  has  become  almost  if  not  entirely  obsolete,  it 
is  believed,  in  this  country,  it  is  not  necessary  to  pursue  the 
inquiry.! 

Assumpsit.  —  The  great  action  of  assumpsit,  although  of  com- 
paratively recent  origin,  is  of  very  difierent  importance  ;$ 
and  under  this  head  we  shall  have  occasion  first  to  consider  the 
rule  of  damages  in  relation  to  bills  and  notes,  insurance,  sales 
of  chattels,  principal  and  surety,  and  common  carriers. 

Covenant.  —  The  action  of  covenant  differs  materially  from 
that  of  assumpsit,  in  its  requisition  of  a  seal  to  the  contract ; 
but  as  this  variation  in  the  form  of  the  agreement  has  no  influ- 
ence on  the  measure  of  relief,  we  shall  be  able  to  consider  the 
rules  of  damages  in  that  form  of  action,  conjointly  with  as- 
sumpsit, reserving  for  separate  examination  the  consideration  of 
a  very  limited  class  of  cases,  which  are  presented  in  that  form 
of  proceeding  only.     First,  then,  of  negotiable  paper. § 

*  Sayer,  ch.  9,  39  ;  Bro.  Dam.  PI.  136,  PI.  right  in   Slade's  case,  44  Eliz.  4   Co.  92  b ; 

166;  Dal.  18,  PI.  121;    Rol.  Abr.    571,   PI.  previous  to  which  the  action  of  debt  was  used. 

17.  "  The  action  of  assumpsit  was  established  in 

t  In  New  York,  by  the  Revised   Statutes,  Slade's  case,"  said  Sir  Jas.  Mansfield,  C.  J., 

an  effort  was  made  by  simj)lifying  the  prac-  in  Max  v.  Roberts,  5  Bos.  &  Pul.  454.      See 

tice  in  this   action  to   reintroduce   it,  in  the  also,  Lord  Loughborough's  opinion,  in  Rudder 

hope,  perhaps,  that  it  might  to  some  extent  v.  Price,  1  H.  Bl.  547. 

supersede  the  expensive  and  dilatory  remedy         §  An  interesting  and  valuable  work  pub- 

in  equity;  but  the  attempt  did  not  succeed.  lished  at  New  Orleans,  entitled  The  Civil  Law 

J  The  action   of  assumpsit  was   first  held  of  Spain  and  Mexico,  by  Gustavus  Schmidt, 


256 


CONTRACTS. 


[CH.    VII. 


contains  a  brief  but  useful  sketch  of  the  {grad- 
ual growth  of  the  Sjjanish  jurisprudence, 
and  its  introduction  on  tiiis  continent,  and  tiie 
modifications  it  has  here  underj^one.  Among 
the  texts  in  regard  to  damages  ou  breach  of 
contract,  are  the  following  :  — 

"  Art.  437.  When  one  of  the  parties,  who 
has  fultilled  his  part  of  a  contract,  desires  to 
rescind  it,  on  account  of  the  non-execution  on 
tlie  part  of  the  other,  he  is  entitled  to  indem- 
nity for  the  injury  he  has  sustained  by  such 
non-execution. 

"  Art.  438.  The  obligor  in  such  a  case  is 
bound  to  pay  indemnity,  unless  he  prove  that 


the  execution  of  the  contract  was  rendered 

impossible  by  some  unforeseen  vis  major. 

"  Art.  439.  The  indemnity  is  fixed  by  the 
creditor  himself,  with  the  approbation  of  the 
judge  who  taxes  the  same." 

This  last  provision  curiously  accords  with 
the  original  rule  of  the  Roman  law,  in  which, 
as  we  have  seen,  the  measure  of  damages  was 
fixed  by  the  plaintiff  hinaself:  in  infinitum 
jurare  potuit.  Ante,  23.  I  confess,  until  I  dis- 
covered this  analogy,  I  thought  there  must  be 
some  misunderstanding  of  the  civil  law,  and 
that  no  jurisprudence  could  ever  have  toler- 
ated such  an  enormity. 


CHAPTER  VIII. 

THE   MEASURE   OF   DAMAGES   IN   ACTIONS    UPON    PROMSSORY   NOTES    MB 

BILLS    OF   EXCHANGE. 

On  Promissory  Notes  the  Legal  Rate  of  Interest  fixes  the  Measure  of  Damages.  — 
Questions  :  when  the  Currency  is  altered  ;  when  the  Contract  is  made  in  one 
Country  and  the  Suit  is  brought  in  another ;  when  the  Amount  of  Recovery 
depends  on  the  Consideration  paid  or  received. —  Rule  of  Damages  on  Bills  of 
Exchange.  —  Reexchange  fixed  in  the  United  States  generally  by  Statute. 

Negotiable  Paper.  —  The  subject  of  negotiable  paper  is  so 
amply  discussed  in  the  various  treatises  devoted  to  this  partic- 
ular branch  of  the  law,  that  it  will  only  be  necessary  for  us  in 
this  place  to  take  a  brief  view  of  the  general  principles  regu- 
lating the  compensation  awarded  for  the  breach  of  contracts  of 
this  class. 

Legal  Interest  Fixes  the  Rule.  —  In  actions  brought  on  prom- 
ises to  pay  a  liquidated  sum  of  money,  as  on  promissory  notes 
or  bills,  where  no  question  arises  as  to  the  currency  or  rate  of 
exchange,  the  rule  of  damages  is  a  fixed  and  arbitrary  one.  It 
is  identical  with  the  rate  of  legal  interest.  The  actual  dam- 
ages may  be  much  greater ;  the  non-performance  of  the  obliga- 
tion may  have  occasioned  the  greatest  distress,  nay,  even  ex- 
treme positive  loss ;  it  may  have  produced  actual  insolvency. 
These  remote  results  the  law,  however,  does  not  investigate.-'- 
It  takes  the  rate  of  interest  as  the  measure  of  damages ;  and 
so,  says  Pothier,  "  as  the  different  damages  which  may  result 
from  the  failure  to  perform  this  kind  of  obligation  vary  infin- 
itely, and  as  it  is  as  difficult  to  foresee  as  to  excuse  them,  it 
has  been  found  necessary  to  regulate  them  as  by  a  species  of 
penalty,  and  fix  them  at  a  precise  sum."  *  ^ 

*  Traite  des  Oblig.  part  i.  ch.  ii.  art.  3,  170.  k  I'infini,  et  qu'il  est  aussi  difficile  de  les  pre- 

Comme   les   difterens    dommages    et   interets  voir  que  de  les  justifier,  il  a  e'te'  ne'eessaire  de 

qui   peuvent    resulter  du   retard    de  I'accom-  les  regler,  comme  par  une  espece  de  foriait,  k 

plissement  de  cette  espece  d'obligation  varient  quelque  chose  de  tixe. 

1  Lewis  V.  Lee,  15  Ind.  499.  2  Heyman  v.  Landers,  12  Cal.  107. 

17 


258  NOTES    AND    BILLS.  [CH.    VIIL 

[234]  Interest  BY  THE  Civil  Law. —  With  this,  the  general 
lan<ruao;e  of  the  modern  civil  law  accords.  The  dam- 
ages  resulting  from  the  non-performance  of  contracts  to  pay 
money,  are  limited  to  the  infliction  of  interest.  "  Interest," 
says  Domat,*  "  is  the  name  applied  to  the  compensation  which 
the  law  gives  to  the  creditor  who  is  entitled  to  recover  a  sum  of 
money  from  his  debtor  in  default."  So,  too,  the  Roman  law : 
In  honce  fidei  contractibus  usurce  ex  mora  dehentiir.^ 

These  principles,  equally  recognized  by  our  system,  are  em- 
bodied in  the  French  Code  by  a  positive  provision,^  the  correct- 
ness of  which  is  thus  supported  and  expounded  by  one  of  the 
ablest  commentators  on  that  law  :  — 

"  It  13  certain  that  the  non-payment  of  money  when  due  may  cause,  and  often 
actually  causes,  the  creditor  loss  much  beyond  the  legal  interest  on  the  sum.  For 
want  of  the  funds  on  the  receipt  of  which  his  calculations  are  made,  he  may  have 
been  compelled  to  borrow,  himself,  and  to  submit  to  the  exactions  of  the  usurer. 
He  may  have  been  prosecuted,  in  a  manner  calculated  to  destroy  his  credit.  He 
may  have  been  ejected  from  his  property ;  have  become  bankrupt ;  his  house 
may  have  gone  to  ruin  for  want  of  repair.  He  may  have  lost  highly  advan- 
tageous bargains. 

"  But  how  are  we  to  distribute  these  losses  according  to  their  real  cause,  and 
fix  on  those  which  should  be  imputed  to  the  party  in  default  ?  How  is  any 
equitable  valuation  to  be  made  of  them  ?  Add  to  this  that  the  non-payment  of 
money  is  the  most  common  of  all  cases  which  give  rise  to  damages,  and  we  shall 
perceive  that  the  peace  of  society  would  be  harassed  by  this  infinite  multitude 
of  settlements,  and  the  litigation  that  would  result  from  them. 

"  The  law  prevents  this  by  declaring  that  the  damages  shall  never  exceed 
legal  interest  from  the  day  that  payment  becomes  due  ;  and  this,  which  is  a  spe- 
cies of  forfeiture,  may  often  be  advantageous  to  the  creditor. 

''  Whatever  may  be  the  damage  that  he  has  suffered  by  the  delay  in  receiving 
his  funds,  whether  the  debtor  was  animated  by  malicious  or  even  fraudulent 
motives,  the  creditor  cannot,  it  is  true,  demand  any  other  compensation  than  legal 
interest  on  his  demand.  But  on  the  other  hand,  he  is  not  required  to  prove  the 
damages  that  the  delay  may  have  caused.  And  this  provision,  which 
[2351  fixes  the  measure  of  damages  for  non-payment  of  money  at  legal  inter- 
est, is  founded  on  a  principle  of  equity. 

"In  cases  of  the  non-performance  of  other  contracts,  the  party  in  default,  as  the 
lessee  who  violates  his  contract  of  letting,  or  the  architect  who,  by  his  negligence, 

*  Liv.  iii.  tit.  v.  §  1.  particuli^res  au  commerce    et  au   cautionne- 

t  L.  32,  §  2,  Ff.  De  usur. ;  propter  moram.  ment. 

L.  17,  §  3,  in  fine  eoclem.  Ces  dommages   et  interets   sont  dus,   sans 

\  Dans  les   obligations  qui  se  boment   au  que  le  cr^ancier  soit  tenu  de  justifier  d'aucune 

paicment  d'une  certaine  somme,  les  dommages  perte. 

et  interets  resultant  du  retard  dans  I'execution  lis  ne  sont  dus  que  du  jour  de  la  demande, 

ne  consistent  jamais  que  dans  la  condaranation  except^  dans  les  cas  oiz  la  loi  les  fait  courir  de 

aux  interets  tixds  par  la  loi,  sauf  les  regies  plein  droit.     Code  C.  Art.  1153. 


CH.    VIII.] 


INTEREST. 


259 


causes  the  destruction  of  a  house,  must  be  fully  apprised  of  the  nature  of  the  loss 
that  may  result  from  the  non-perforraaiice  of  his  duty  ;  whereas  with  money  it  is 
different. 

"  On  the  contrary,  the  engagement  to  pay  a  sum  of  money  has  no  precise  rela- 
tion to  any  particular  damage ;  it  is  im[)0ssible  to  know  what  will  result  from  its 
non-payraeut ;  it  is  impossible  to  see  what  the  creditor  will  lose,  or  how  much  he 
will  lose;  whether  he  will  be  compelled  to  borrow  —  whether  he  will  be  driven 
from  his  house  and  reduced  to  bankruptcy  —  whether  his  business  or  his  credit 
will  suffer  ;  it  is  impossible  to  predict  any  one  event  among  the  thousand  which 
are  possible,  and  which  depend  upon  the  situation  of  the  creditor's  affairs. 

"  Mouf^y  being  the  common  measure  of  all  things,  has  not,  like  other  things, 
any  peculiar  function.  It  takes  the  place  of  all  other  things.  The  loss  expe- 
rienced, then,  by  those  who  are  not  paid  at  maturity,  is  as  diversified  as  the  use 
that  they  might  make  of  the  money,  and  as  unforeseen  as  the  wants  from  which 
the  injury  might  arise.  They  are,  in  regard  to  the  debtors,  like  fortuitous  cases, 
impossible  to  foresee,  and  which  for  this  reason  their  obligation  does  not  em- 
brace." * 


And  it  should  be  borne  in  mind,  as  Pothier  also  well  [236] 
remarks,  that  if  on  the  one  hand  the  creditor  cannot  re- 
cover anything  beyond  the  legal  interest,  so  on  the  other  hand 
he  is  not  put  to  any  proof  of  damage  whatever.!     It  is  an 


*  Touillier,  vol.  6,  liv.  3,  tit.  3,  ch.  iii.  De 
I'Effet  des  Obligations,  230,  et  seq.  II  est  pour- 
tant  certain  que  le  defaut  de  paicment  d'une 
somme  au  tenne  fixe'  pout  causer,  et  cause 
souvent,  au  cre'ancier  des  pertes  fort  superi- 
eures  a  I'interet  legal  de  son  argent.  Faute 
de  la  somme  sur  laquelle  il  comptait,  il  a  pu 
etre  reduit  a  emprunter  lui  merae,  et  a  subir 
la  loi  d'un  usurier  avide.  II  a  pu  se  voir  tra- 
duit  en  justice,  par  une  action  qui  a  porte  una 
atteinte  mor telle  a  son  cre'dit,  se  voir  expi'oprie, 
faire  faillite,  voir  pe'rir  sa  maison  faute  de 
movens  pour  la  rc'parer,  manquer  des  marches 
avantageux,  etc.,  etc. 

Mais  comment  assigner  k  ces  pertes  leur 
veritable  cause,  et  discerner  celles  qui  doivent 
etre  impute'es  au  debiteur  en  retard  ?  Com- 
ment en  faire  une  evaluation  equitable  ? 
Ajouter  a  cola  que  le  de'faut  de  paiement  d'une 
somme  due  est  le  plus  fre'quent  de  tous  les  cas 
qui  donnent  lieu  a  des  dommages  et  interets, 
et  Ton  verra  que  la  paix  de  la  societe  serait 
troublee  par  cette  multitude  infinie  de  liquid- 
ations ditferentes  et  par  les  proces  qui  en 
seraient  la  suite.  La  loi  les  previent,  en  stat- 
uant  que  les  dommages  et  interets  ne  pourront 
jamais  consister  que  dans  I'interet  legal  de  la 
somme  a  compter  du  jour  de  la  demande.  C'est 
une  espece  de  forfait  qui  peut  souvent  etre  ad- 
vantageux  au  creancier. 

Qiielque  soit  le  dommage  qu'il  souflfrepar  le 
de'faut  de  rentree  de  ses  fonds,  soit  qu'il  n'y  ait 
qu'une  simple  negligence,  soit  qu'il  -y  ait  de  la 
part  du  debiteur  contumace  aftectce  ou  meme 
dol,  le  cre'ancier  ne  peut  h.  la  ve'rite  demander 


d'autre  indemnite  que  I'interet  legal  du  son 
argent ;  mais  aussi  il  n'est  pas  assujetti  a 
justifier  le  dommage  que  ce  retard  lui  a  cause. 

Cette  disposition  de  la  loi  qui  fixe  I'indem- 
nite  a  I'inte'ret  legal  des  sommes  dues,  est  en- 
core fonde'e  sur  uu  principe  d'equite  qu'il  faut 
de'velopper 

Au  contraire,  I'engagement  de  ceux  qui 
doivent  une  somme  d'argent  n'a  de  rapport 
precis  a  aucun  dommage  particulier  :  on  ne 
voit  pas  ce  qui  doit  arriver  faute  de  paie- 
ment ;  on  ne  peut  prevoir  ni  si  le  creancier  en 
soufFrira  ni  ce  qu'il  en  souffrira,  in  cas  qu'il  en 
soutfre,  s'il  sera  force  d'emprunter,  s'il  sera  ex- 
proprie  ou  re'duit  a  une  Mllite,  s'il  eprouvera 
des  pertes  dans  son  cre'dit,  dan  son  commerce, 
ou  tel  autre  evenement  entre  mille  possibles 
qui  dependent  de  la  situation  des  affaires  du 
cre'ancier. 

L'argent  par  sa  nature  etant  le  prix  commun 
de  toutes  les  choses,  n'a  pas  comme  elles  un 
usage  particulier.  II  tient  lieu  a  chacun  de 
toutes  celles  dont  il  a  besoin.  Les  dommages 
qu'  eprouvent  ceux  qui  ne  sont  pas  payes  au 
terme,  sont  done  aussi  diversifies  que  I'usage 
qu'ils  pourraient  faire  de  leur  argent,  et  aussi 
impre'vus  que  les  besoins  d'oii  ces  dommages 
peuvent  naitre.  lis  sont,  h,  I'egard  des  de'bi- 
teurs,  comme  des  cos  fortuits  qu'ils  n'ont  pu 
prevoir,  et  que  par  cette  raison  leur  obligation 
ne  renferme  point. 

t  So  says  the  civil  code  of  Louisiana,  "  The 
damages  due  for  delay  in  the  performance  ot 
an  obligation  to  pay  money,  are  called  interest. 
The  creditor  is  entitled  to'these  damages  with- 


260  NOTES    AND    BILLS.  [CH.    Vin. 

arbitrary  assessment  of  damages  in  the  nature  of  the  Lex  Aqiii- 
lia  of  the  Roman  system.  He  can,  it  is  true,  recover  but  tire 
legal  rate  of  interest ;  but  then,  on  the  other  hand,  he  might 
in  fact  not  have  been  able  to  gain  any  interest  whatever,  dur- 
ing the  time  he  has  been  deprived  of  his  funds. 

"  It  is  a  dictate  of  natural  justice  and  the  law  of  every  civil- 
ized country,  that  a  man  is  bound  in  equity  not  only  to  perform 
his  engagements,  but  also  to  repair  all  the  damages  that  accrue 
naturally  from  their  breach.  Hence,  every  nation,  whether 
governed  by  the  civil  or  common  law,  has  established  a  cer- 
tain common  measure  of  rej)aration  for  the  detention  of  money 
not  paid  according  to  contract,  which  is  usually  calculated 
at  a  certain  and  legal  rate  of  interest."  *  ^  Such  is  the  lan- 
guage of  the  Supreme  Court  of  the  United  States ;  but  it  is  to 
be  taken  with  much  allowance.  The  thunders  of  the  early 
church  t  were  leveled  against  interest  and  usury  indiscrimi- 
nately; and  up  to  the  time  of  Henry  VIH.,  as  we  are 
[237]  told  by  Lord  Mansfield,^  "  all  interest  on  money  lent 
was  prohibited  by  the  common  law,  as  it  is  now  in 
Roman  Catholic  countries."  §  This  statute  simply  provided 
that  none  should  take  for  any  loan  or  commodity  above  the 
rate  of  ten  pounds  for  one  hundred  pounds  for  one  whole 
year,  which  rate  was  reduced  to  five  per  cent,  by  a  subse- 
quent statute,  passed  in  the  reign  of  Queen  Anne.|| 

Promissory  Notes.  —  I  shall  consider  the  rule  of  damages 
in  regard  to  promissory  notes  and  bills  of  exchange,  separ- 
ately.^ In  regard  to  the  former,  the  measure  of  damages 
being  fixed  at  the  rate  of  interest,  if  the  currency  at  the 
time  and  place  of  payment  be  the  same  as  at  the  time  and 
place  of  contract,  it  would  seem  that  no  question  could  arise  ; 
but  it  sometimes  happens  that  between  the  date  and  maturity 

out  proving  any  loss,  and  whatever  loss  he  shalt  not  lend  upon  usury  to  thy  brother."  — 

may  have  suffered  he  ean  recover  no  more." —  Ueut.  xxiii.  19,  20. 

Art.  1929.  t  Lowe  v.  Waller,  Doug.  736,  740. 

*  Curtis  V.  Innerarity,  6  Howard,  146.  §  See   also,   Robinson   v.   Bland,    2    Burr. 

t  See  Voltaire's  article,  InMret,  in   the  Die-  1077,  1086. 

tionnaire  Phiiosophicjue,  where  he  represents  ||  12  Anne,  Stat.  2,  c.  16.     See  final  note  at 

a  Jan.senist  Abbe  remonstrating  with  a  Dutch  end  of  this  volume. 

merchant    against    taking    interest :    Prenez  T[  It  will  be  remembered,  that  Mr.  Justice 

garde  ;  vous   vous  damnez  ;  I'argent  ne  pent  Story  has  given  the  high  authority  of  his  pre- 

produire  de  I'argent  ne  pent  produire  de  I'ar-  ccpt  and  example  to  a  complete  division  of  all 

gent ;  numnius    nummum    non    jiarit.     The  discussions  as  to  bills  and  notes,  by  the  sep.a- 

hostility  of  the  church  was  founded  on    the  rate   treatises  which  he  has  presented  to  the 

prohibition   in   the   Old   Testament,    "  Thou  profession  on  these  subjects. 

1  As  to  the  liability  for  interest  in  a  peculiar  case,  see  Davis  v.  Lanier,  2  Jones  (N.  C.)  L. 
307. 


CH.    VIII.]  PROMISSORY   NOTES.  261 

of  a  promissory  note  a  change  takes  place  in  the  value  of  the 
coin  or  currency  in  which  it  is  made  payable,  even  in  the  same 
country.^  In  such  a  case,  it  seems,  in  England  the  note  will 
be  discharged  by  a  due  payment  in  any  coin  which  by  law 
is  made  of  equivalent  value  at  the  time  of  payment.*  ^ 

*  Story  on  Notes,  §  390,  where  the  opinion  R.  18,  19  ;    Cockerell  v.   Barber,  16  Vcs.  461, 

of  the  continental  jnrists  will  be  found.    Case  465  ;  Story  on  Con.  of  Laws,  §  312  ;  on  Bills, 

of  Mixed  Moneys,  Sir  John  Davis'  Reports,  §  163  ;  Warder  v.  Arell,   2   Wash.   Virg.   R. 

18;  S.  C,  2  BlighR.  98;  Pilkington  I'.  Com-  282;    Searight    v.    Calbraith,   4    Dall.    325; 

missioner  for  Claims  on  France,  2   Knapp's  Bartsch  v.  Atwater,  1  Conn.  R.  409. 

1  Other  questions  very  various,  and  sometimes  very  perplexing,  arise  from  the  depreciation 
of  the  currency. 

Upon  a  deposit  being  made  in  the  Bank  of  the  Commonwealth  of  Kentucky,  the  cashier 
gave  a  written  certificate  that  there  had  been  deposited  to  the  credit  of  the  plaintiffs  below 
$7,730.81,  which  was  subject  to  their  order  on  the  presentation  of  the  certiticate.  The  deposit 
was  made  in  the  notes  of  the  bank,  and  both  when  the  same  were  deposited  and  wli^n  demand 
of  payment  was  made,  they  were  passing  at  one  half  their  nominal  value.  When  the  certifi- 
cate was  presented  to  the  bank,  the  cashier  offered  to  pay  the  amount  in  the  notes  of  the  bank, 
but  the  holders  refused  to  receive  payment  in  anything  but  gold  or  silver.  The  language  of 
the  certificate  was  held  to  be  expressive  of  a  general,  not  a  specific  deposit,  and  the  act  of  in- 
corporation required  that  the  bank  should  pay  and  redeem  their  bills  in  gold  and  silver.  The 
transaction  was  considered  equivalent  to  receiving  and  depositing  the  gold  and  silver,  and  the 
bank  was  held  liable  for  the  whole  nominal  amount  of  the  deposit  in  coin.  Bank  of  Kentucky 
t;.  Wister,  2  Peters,  318.     See  Thompson  v.  Riggs,  note  2,  iyifra. 

2  Among  the  most  important  of  the  legal  questions,  growing  out  of  the  great  war  in  which 
the  United  States  have  been  involved  since  the  last  edition  of  this  work,  are  those  relating  to 
the  value  of  the  depreciated  currency,  as  a  means  of  discharge  of  debts.  The  Congress,  early 
in  the  war  (Act  of  February  25,  1862,  c.  xxxiii.  U.  S.  Stat,  at  Large,  vol.  xii.  345),  passed 
a  law  declaring  certain  treasury  notes,  to  be  issued  by  virtue  of  the  law,  a  legal  tender  in 
payment  of  debts,  the  principle  of  which  was  again  repeatedly  acted  on  by  the  Congress. 
(Acts  March  3,  1863,  12  U.  S.  Stat,  at  Large,  709,  and  June  30,' 1864,  13  Stat',  at  Large,  218.) 
A  review  of  the  arguments,  asserting  the  constitutionality  of  this  law,  would  be  out  of  place 
here.  It  is  sufficient  to  say,  that  by  the  omission  in  the  Constitution  of  the  United  States  to 
declare  what  shall  be  a  legal  tender,  and  by  its  prohibition  to  the  States  to  make  such  tender 
of  anything  but  gold  and  silver,  it  is  considered  in  most  of  the  late  decisions  that  the  power 
to  do  so  is  by  implication  conferred  on  the  general  government  as  an  incident  to  its  enum- 
erated powers,  and  as  a  means,  in  case  of  necessit}',  of  accomplishing  the  ends  which  the  gov- 
ernment and  Constitution  themselves  were  both  designed  to  secure.  But  it  is  proper  to  notice 
the  leading  decisions  somewhat  less  cursorily.  In  the  cases  of  The  Metrojjolitan  Bank  and 
The  Shoe  and  Leather  Bank  v.  Van  Dyck,  Superintendent  of  the  Banking  Department,  and 
Meyer  v.  Roosevelt,  27  N.  Y.  400,  after  very  full  consideration,  the  New  York  Court  of  Ap- 
peals held  that  the  act  was  constitutional,  and  that  therefore  a  payment  in  treasury  notes  of 
the  nominal  amount  of  a  debt  which  was  prior  to  the  passage  of  the  act  payable  in  gold  and 
silver  coin  discharged  the  debt,  notwithstanding  that  gold  and  silver  were  at  a  premium  over 
the  notes.  See  also  Kimpton  i'.  Bronson,  45  Barb.  618.  So  where  a  certain  sum  per  mile  has 
been  established  as  the  legal  fjire  for  carrying  a  passenger  by  railway,  the  railway  company 
must  accept  the  fare  in  United  States  notes  at  their  legal  value,  and  cannot  exact  it  in  gold. 
Lewis  V.  The  New  York  Central  R.  R.  Co.  Supreme  Court,  N.  1'".  —  N.  Y"".  Transcript,  Oct. 
2,  1867  ;  6  Am.  Law  Reg.  (N.  S.)  703. 

The  Supreme  Court  of  Indiana,  while  declaring  its  opinion  against  the  constitutionality  of 
the  law,  nevertheless  decides  from  considerations  of  policy  to  maintain  it,  until  the  question 
shall  be  otherwise  determined  by  the  Supreme  Court  of  the  United  States.  Reynolds  v.  Bank 
of  Indiana,  1  Am.  Law  Reg.  (N.  S.)  669.  In  Iowa  it  is  held  that  a  party  may  redeem  lands 
sold  for  taxes,  by  paying  the  amount  in  legal  tender  notes.  Hintrager  v.  Bates,  clerk,  etc.,  18 
Iowa,  174.  The  law  has  also  been  maintained  by  the  Supreme  Court  of  California,  with  a 
firmness  the  more  marked,  that  the  practice  and  preference  of  the  "  Golden  State"  have  long 
been  manifested  in  favor  of  a  metallic  currency.  Lick  i;.  Faulkner,  25  Cal.  404.  The  same 
may  be  said  of  the  mineral  State  of  Nevada.  Maynard  v.  Newman,  1  Nevada,  271.  In  Penn- 
sylvania also,  in  several  cases  decided  together  after  very  full  discussion,  the  constitutionality 
of  the  law  has  been  lately  maintained  by  the  Supreme  Court  of  that  State  although  in  opposi- 
tion to  the  opinions  of  Mr.  Chief  Justice  Woodward  and  Mr.  Justice  Thompson.  Shollen- 
berger  v.  Brinton,  Mervine  v.  Sailor,  Davis  v.  Burton,  Kroener  v.  Colhoun,  Sandford  v.  Hays, 
Graham  v.  Marshall,  Laughlin  v.  Harvey,  52  Penn.  St.  9.  Massachusetts  also  u]iholds  the 
law.     Wood  V.  Bullens,  6  Allen,  516  ;  Es'sex  Co.  v.  Pacific  Mills,  14  Allen,  389.     The  follow- 


262  NOTES    AND    BILLS.  [CH.    VIIL 

Exchange.  —  So    again,   where  a  contract   is   made    in   one 
country,  and  is  payable  in  the  currency  of  that  country,  and  a 

ing  cases,  sustaining  or  acquiescing  in  the  constitutionality  of  the  legal  tender  acts,  may  also 
be  referred  to :  Hague  v.  Powers,  .39  Barb.  427  ;  Roosevelt  v.  Bull's  Head  Bank,  45  Ibid.  579 ; 
Wilson  V.  Morgan i  I  Ab.  Pr.  (N.  S.)  174;  George  v.  Concord,  45  N.  H.  434  ;  Breitenbaeh  v. 
Turner,  18  Wis.  140;  Van  Husan  v.  Kanouse,  13  Mich.  303  ;  Carpenter  v.  Northfield  Bank, 
39  Vt.  46  ;  A].i)el  v.  Woltniann,  35  Mo.  194;  Verges  v.  Giboney,  38  Mo.  458.  In  Kentucky 
their  constitutionality  is  denied.     GrLswold  v.  Hepburn,  2  Duvall,  20. 

The  Supreme  Court  of  the  United  States  have  not  hitherto  directly  passed  upon  the  ques- 
tion, but  in  the  case  of  Thompson  and  another,  plaintiffs  in  error,  against  liiggs  and  another, 
which  came  Ijcfore  that  high  tribunal,  on  error  from  the  Sujjreme  Court  of  the  District  of 
Columbia,  at  the  December  term,  1866,  the  declaration  stated  that  the  defendants  were  bankers 
exercising  the  trade  and  business  of  banking,  and  that  the  plaintiffs  were  their  customers,  and 
as  such  were  in  the  habit  of  making  deposits  at  their  bank ;  that,  as  such  bankers,  the  de- 
fendants were  accustomed  to  receive,  as  deposits,  gold  and  silver  coin,  and  other  money 
currency  of  their  customers,  to  be  paid  and  returned  in  kind,  agreealdy  to  the  custom  of  their 
bank  and  all  other  banks  in  the  city  of  Washington  ;  and  that  the  i)laintiffs,  on  the  28th  day 
of  February,  1864,  having  due  them  at  the  defendants'  bank  a  balance  of  live  thousand  seven 
hundred  and  sixty-one  dollars,  as  deposits  previously  made  there  in  gold  and  silver  coin, 
demanded  payment  and  return  of  the  same,  and  that  the  defendants  then  and  there  refused  to 
make  such  payment  and  return  as  they  had  promised  to  do.  The  defendants  pleaded  the 
general  issue,  and  that  they,  at  a  certain  time  prior  to  the  suit,  tendered  the  plaintiffs  the  sum 
of  money  in  their  declaration  mentioned,  in  treasui'y  notes,  made  a  legal  tender  in  payment  of 
debts,  and  that  from  that  time  they  had  been  and  still  were  ready  to  pay  the  same,  and  had 
brought  the  same  into  court.  At  the  trial  at  a  sjiecial  term  of  the  court  below,  it  appeared 
that  the  defendants,  prior  to  the  suspension  of  specie  payments  in  April,  1861,  paid  all  checks 
drawn  upon  the  bank  by  their  customers,  in  gold  or  its  equivalent,  except  where  the  deposit 
had  been  made  in  depreciated  paper ;  that  after  that  time  they  uniformly  made  a  difference 
with  their  customers  in  receiving  and  paying  their  deposits  between  coin  or  specie  and  paper 
money,  and  that  in  all  cases  where  the  deposit  had  been  made  in  coin,  if  requested,  they  paid 
the  checks  in  coin  ;  that  after  the  suspension  of  the  banks  the  defendants  refused  to  receive 
cuiTency  as  the  equivalent  of  specie ;  but  currency  continued  to  be  received  and  credited  to 
customers  as  before  ;  that  it  was  not  received  on  special  deposit,  but  went  into  the  general 
funds  of  the  bank,  and  the  same  money  was  not  returned  to  the  customer;  that  the  plaintiffs 
had  never  made  any  special  deposits  with  the  defendants  ;  and  that  the  books  of  the  bank 
were  kept  as  before  the  suspension,  exce])t  that  the  different  deposits  were  designated  as  coin, 
cash  checks,  or  treasury  notes.  The  defendants  had  a  verdict  and  judgment  thereupon,  Avhich 
was  affirmed  at  a  general  term  of  the  court  below.  A  writ  of  error  was  sued  out  by  the 
plaintiffs  to  the  Supreme  Court  of  the  United  States,  where  the  principal  questions  in  the 
court  below  (and  which  arose  on  the  prayers  for  instructions  to  the  jury,  which  had  been 
refused,  and  the  instructions  which  had  been  given),  not  having  been  properly  presented  by 
bill  of  exceptions,  were  considered  as  not  before  the  appellate  court.  The  only  question  on 
the  merits  of  the  case  directly  passed  upon  by  that  court,  arose  under  an  exception  to  a  ruling 
excluding  testimony  offered  by  the  plaintiff  below  to  show  the  usage  and  mode  of  dealing  of 
other  bankers  in  the  city.  This  testimony  was  held  to  be  immaterial,  or  inadmissible  as  tend- 
ing to  control  well  settled  principles  of  law,  and  the  judgment  was  affirmed.  But  Mr.  Justice 
Clifford,  in  delivering  the  opinion  of  the  court,  after  adverting  to  the  facts  appearing  in 
evidence  alread}^  stated,  used  the  folhnving  language :  "  Contracts  between  a  banker  and  his 
customers  must  be  construed  in  the  same  way  as  contracts  between  other  parties.  When  the 
banker  specially  agrees  to  pay  in  bullion  or  in  coin,  he  must  do  so  or  answer  in  damages  for 
its  value  ;  and  so  if  one  agrees  to  pay  in  depreciated  paper,  the  tender  of  that  paper  is  a  good 
tender,  and  in  default  of  payment  the  promissee  can  recover  only  its  market  and  not  its 
nominal  value.  But  where  the  deposit  is  general,  and  there  is  no  special  agreement  proved, 
the  title  of  the  money  deposited,  whatever  it  may  be,  passes  to  the  bank,  and  the  transaction 
is  unaffected  by  the  character  of  the  money  in  which  the  deposit  is  made,  and  the  bank 
becomes  liable  for  the  amount  as  a  debt  which  can  only  be  discharged  by  such  money  as  is  by 
law  a  legal  tender."  In  Massachusetts  it  has  been  recently  decided  that  a  contract  to  pay,  as 
rent,  a  certain  number  of  ounces  of  silver  "  of  the  present  standard  fineness  of  the  silver  coin 
of  the  United  States,"  or  an  equivalent  in  gold,  is  a  contract  for  the  delivery  of  a  commodity, 
and  not  for  the  payment  of  money  ;  the  measure  of  damages  for  the  breach  of  such  a  contract 
is  the  market  value  of  the  commodity.  Essex  Co.  v.  Pacific  Mills,  14  Allen,  389  ;  Sears  v. 
Dewing,  Ibid.  413.  In  Illinois,  where,  before  the  act  authorizing  the  legal  tender  notes,  a 
deposit  of  gold  coin  had  been  made  in  a  bank,  to  be  drawn  out  in  gold,  and  was  subsequently 
drawn  out  in  checks  paid  in  treasury  notes  when  gold  was  at  a  premium,  the  bank  was  held 
liable  for  the  amount  of  the  premium.  Kupfer  v.  The  Bank  of  Galena,  34  111.  32^  ;  and  in 
tb''  case  of  Luling  i'.  The  Atlantic  Mutual  Insurance  Co.  45  Barb.  510,  where  there  was  an 


CH.  viil]  assumpsit  and  C0\'ENANT.  263 

suit  is  afterwards  brought  in  another  country  to  recover  for  a 
breach  of  the  contract,  a  question  often  arises  as  to  the  manner 

agreement  between  certain  policy  holders  and  the  company  that  both  premiums  and  losses 
should  be  paid  in  pold,  it  was  held  that  the  company,  in  declarinj^  its  dividends,  was  bound  to 
allow  such  policy  holders  a  certificate  of  their  share  of  the  profits  in  accordance  with  the  gold 
standard  as  comimrcd  with  currency.  And  in  Pennsylvania,  the  condition  of  a  bond  for  the 
payment  of  ?8,(H(()  in  gold  coin  of  the  United  States,  of  the  then  existing  standard  of  weight 
and  fineness,  was  held  a  valid  contract  not  to  be  satisfied  by  the  payment  of  legal  tender  notes. 
Button  V.  Pailaret,  .52  Penn.  St.  109.  See  also,  Carpentier  v.  Atherton,  25  Cal.  564,  which 
was  a  case  in  California  maintaining  the  validity  of  a  statute  in  that  State,  re(iuiring  judg- 
ments in  the  courts  of  that  State  to  be  payable  in  the  coin  or  currency  stipulated  in  the 
contract;  although  the  court,  in  delivering  their  opinion,  observe  that  they  "cannot  judicially 
say  that  one  kind  of  money  made  a  legal  tender  is  of  greater  or  less  value  than  another ;  nor 
can  evidence  be  received  to  prove  a  difference."  The  last  case,  however,  we  venture  to  think 
unsound.  It  being  decided  that  the  acts  of  Congress  are  constitutional,  it  follows  that  they 
are  the  sui)reme  law  of  the  land.  Const.  U.  S.  art.  6,  sect.  2.  How  then  can  the  law  of  the 
State  enforce  the  collection  of  a  judgment  in  coin,  when  the  paramount  law  declares  that  pay- 
ment in  another  currency  shall  discharge  the  debt?  The  law,  however,  has  been  since 
reaffirmed  and  repeatedlv  acted  on  in  that  State.  See  Lane  v.  Gluckauf,  28  Cal.  288 ; 
Spencer  v.  Prindle,  28  Cal.  276  ;  McComb  v.  Reed,  28  Cal.  281  ;  Harding  v.  Cowing,  28  Cal. 
212;  Reese  v.  Stearns,  29  Cal.  273;  Tarpy  v.  Shepherd,  30  Cal.  180;  Poett  v.  Stearns,  31 
Cal.  78.  Since  writing  this  comment,  we  have  met  with  the  case  of  Milliken  v.  Sloat,  1 
Nevada,  573,  585,  which  arose  under  a  similar  act  in  that  State.  In  this  case  the  views  we 
have  expressed  are  adopted.  Those  of  Carpentier  v.  Atherton  are  dissented  from,  and  the 
State  law  is  declared  void. 

Several  courts  have  decided  that  contracts  payable  expressly  in  gold  and  silver  coin,  as 
money,  could  be  satisfied  by  payment  of  the  nominal  amount  due  in  United  States  notes. 
Thayer  v.  Hedges,  23  Ind.  i41.  So  in  Michigan,  Illinois,  and  Iowa  it  has  been  held  that  a 
promissory  note  payable  in  gold,  is  not  a  contract  for  gold  as  bullion  or  merchandise,  and  that 
the  measure  of  damages  is  the  number  of  legal  dollars  without  regard  to  the  kind  of  money  by 
which  the  contract  is  to  be  discharged.  Buchegger  v.  Schultz,  5  Am.  Law.  Reg.  (N.  S.)  95  ; 
Whetstone  v.  Colley,  36  111.  328  ;  Warnibold  v.  Schlicting,  16  Iowa,  243 ;  Troutmanr.  Cowing, 
16  Iowa,  415.  A  decision  on  this  question  has  recentlj'  been  reached  by  the  Supreme  Court  of 
the  United  States  in  Bronson  v.  Rodes,  which  is  reported  at  length  in  Am.  Law  Rev.  April, 
1869.  The  case  came  before  the  court  on  a  writ  of  error  from  the  Court  of  Appeals  of  New  York. 
A  mortgage  was  made  in  1851  to  secure  the  performance  of  the  condition  of  a  bond  of  even 
date  ;  the  condition  was  that  the  obligor  should  pay  to  the  obligee  the  sum  of  $1,400  in  gold 
and  silver  coin,  lawful  money  of  the  United  States,  with  interest,  also  in  coin  until  repayment. 
On  these  facts  it  was  held  that  the  mortgage  was  not  discharged  by  tender  of  United  States 
notes  to  an  amount  nominally  equal  to  the  principal  and  interest  due.  This  decision,  which 
overrules  that  of  the  Court  of  Appeals  (Rodes  v.  Bronson,  34  N.  Y.  649),  is  based  by  the  court 
on  the  two  grounds,  —  first,  that  by  the  various  acts  of  Congress  regulating  the  currency  a  con- 
tract payable  in  gold  and  silver  coin,  lawful  money  of  the  United  States  was  equivalent  to  one 
to  deliver  an  equal  weight  of  bullion  of  the  same  fineness  required  by  law  for  the  coin  ;  second, 
that  as  there  were  two  kinds  of  money  at  the  time  the  tender  was  made,  both  of  which  were  by 
law  legal  tender,  but  which  were  in  actual  value  far  from  equivalent  to  each  other,  a  contract 
requiring  payment  in  the  most  valuable  kind,  namely,  gold  and  silver,  could  only  be  satisfied 
by  such  a  payment.  Mr.  Justice  Miller  dissented  from  this  reasoning,  using  the  following 
language  :  "  But  if  I  correctly  apprehend  the  scope  of  the  opinion  delivered  by  the  Chief  Justice, 
the  effort  to  prove  for  this  contract  a  special  intent  of  payment  in  gold,  is  only  for  the  purpose 
of  bringing  it  within  the  principle  there  asserted,  both  by  express  words  and  by  strong  implica- 
tion, that  all  contracts  must  be  paid  according  to  the  intention  of  the  parties  making  them. 
I  think  I  am  not  mistaken  in  my  recollection,  that  it  is  broadly  stated  that  it  is  the  business  of 
courts  of  justice  to  enforce  contracts  as  they  are  intended  by  the  parties,  and  that  the  tender 
must  be  according  to  the  intent  of  the  contract.  Now,  if  the  argument  used  to  show  the 
intent  of  the  parties  to  the  contract  is  of  any  value  in  this  connection,  it  would  prove  that 
such  intent  must  enter  into  and  form  a  controlling  element  in  the  judgment  of  the  court  in 
construing  the  legal  tender  acts.  I  shall  not  consume  time  by  any  attempt  to  show  that  the 
contract  in  this  case  is  a  debt,  or  that  when  Congress  said  that  the  notes  it  was  about  to  issue 
should  be  received  as  legal  tender  in  payment  of  all  private  debts,  it  intended  that  which  these 
words  appropriately  convey.  To  assume  that  Congress  did  not  intend  by  that  act  to  authorize 
payment  by  a  medium  differing  from  that  which  the  parties  intended  by  the  contract,  is  in  con- 
tradiction to  the  express  language  of  the  statute,  to  the  sense  in  which  it  was  acted  on  by  the 
people  who  paid  and  received  those  notes  in  discharge  of  contracts,  for  incalculable  millions  of 
dollars,  where  gold  dollars  had  been  in  contemplation  of  the  parties  when  the  contracts  were 
made,  and  to  the  decisions  of  the  highest  courts  of  fifteen  States  of  the  Union,  being  all  that 


264  NOTES    AND    BILLS.  [CH.    VUL 

in  which  the  amount  of  the  debt  is  to  be  ascertained,  whether 
at  the  nominal  or  pur  value  of  the  currencies  of  the  two  coun- 

have  passed  upon  the  subject.  As  I  have  no  doubt  that  it  was  intended  by  those  acts  to  make 
the  notes  of  tlie  United  States,  to  which  they  applied,  a  legal  tender  for  all  private  debts  then 
due,  or  which  mi<;ht  become  due  on  contracts  then  in  existence,  without  regard  to  the  intent 
of  the  parties  on  that  point,  I  must  dissent  from  the  judgment  of  the  court,  and  from  the 
opinion  on  which  it  is  founded." 

The  principles  laid  down  in  this  case  have  been  subsequently  applied  by  the  same  court  to 
a  contract  of  a  difierent  kind,  in  Butler  v.  Horwitz  (error  to  the  Maryland  Court  of  Common 
Pleas).  Mr.  Chief  Justice  Chase  delivered  the  opinion  of  the  Court.  The  record  shows  a 
suit  for  breach  of  a  covenant  for  payment  of  rent  contained  in  a  lease  of  certain  premises  in  the 
city  of  Baltimore,  made  in  1791  for  ninety-nine  years,  renewable  forever,  upon  an  "annual 
rent  of  fifteen  jiounds  current  money  of  Maryland,  ])ayable  in  English  golden  guineas,  weighing 
five  pennyweights  and  six  grains,  at  thirty-five  shillings  each,  and  other  gold  and  silver  at  their 
present  weights  and  rates  established  by  act  of  Assembly.  The  obvious  intent  of  the  contract 
was  to  secure  payment  of  a  certain  rent  in  gold  and  silver  coin,  which  was,  on  Jan.  1 ,  1866,  $40 ; 
and  judgment  was  rendered  on  the  27th  of  June,  1866,  for  $49.71.  The  judgment  was 
rendered  as  the  legal  result  of  two  propositions  :  1.  That  the  covenant  in  the  lease  required 
the  delivery  of  a  certain  amount  of  gold  and  silver  in  payment  of  rent;  and,  2.  That  damages 
for  non-performance  must  be  assessed  in  the  legal  tender  currency.  The  first  of  these  proposi- 
tions is,  in  our  judgment,  correct;  the  second  is,  we  think,  erroneous.  It  is  not  necessary  to 
go  at  length  into  the  grounds  of  this  conclusion.  We  will  only  state  briefly  the  general 
propositions  on  which  it  rests,  some  of  which  have  been  already  stated  more  fully  in  Bronson 
V.  Rodes.  A  contract  to  pay  a  certain  sum  in  gold  and  silver  coin  is,  in  substance  and  legal 
effect,  a  contract  to  deliver  a  certain  weight  of  gold  and  silver  of  a  certain  fineness,  to  be  ascertained 
by  count.  Damages  for  non-performance  of  such  a  contract  may  be  recovered  at  law,  as  for  non-per- 
formance of  a  contract  to  deliver  bullion  or  other  commodity.  But  whether  the  contract  be  for  the 
delivery  or  payment  in  coin  or  bullion,  or  other  property,  damages  for  non-performance  must 
be  assessed  in  lawful  money  —  that  is  to  say,  in  money  declared  to  be  legal  tender  in  payment 
by  a  law  made  in  pursuance  of  the  Constitution  of  the  United  States.  It  was  not  necessary  in 
the  case  of  Bronson  v.  Kodes,  nor  is  it  necessary  now,  to  decide  the  question  whether  the  acts 
making  United  States  notes  legal  tender  are  warranted  by  the  Constitution.  We  express  no 
opinion  on  that  point,  but  assume,  for  the  present,  the  constitutionality  of  these  acts.  Pro- 
ceeding upon  this  assumption,  we  find  two  descriptions  of  lawful  money  in  use  under  acts  of 
Congress,  in  either  of  which  damages  for  non-performance  of  conti'acts,  whether  made  before  or 
since  the  passage  of  the  currency  acts,  may  be  properly  assessed,  in  the  absence  of  any  different 
understanding  or  agreement  between  parties.  But  the  obvious  intent,  in  contracts  for  payment 
or  delivery  of  coin  or  bullion,  to  provide  against  fluctuations  in  the  medium  of  payment, 
warrants  the  inference  that  it  was  the  understanding  of  the  parties  that  such  contracts  should 
be  satisfied,  whether  before  or  after  judgment,  only  by  tender  of  coin,  while  the  absence  of  any 
express  stipulation,  as  to  description,  in  contracts  for  payment  in  money  generally,  warrants 
the  opposite  inference  of  an  understanding  between  parties  that  such  contracts  may  be  satisfied, 
before  or  after  judgment,  by  the  tender  of  any  lawful  money.  This  inference  as  to  contracts 
made  previous  to  the  passage  of  the  acts  making  United  States  notes  a  legal  tender,  is 
strengthened  by  the  consideration  that  those  acts  not  only  do  not  prohibit,  but,  by  strong 
implication,  sanction  contracts  made  since  their  passage  for  payment  of  coin ;  and  consequently 
taken  in  connection  with  the  ])rovision  of  the  act  of  1792,  concerning  money  of  account, 
require  that  damages  upon  such  contracts  be  assessed  in  coin,  and  judgment  rendered 
accordingly ;  leaving  the  assessment  of  damages  for  breach  of  other  contracts  to  be  made,  and 
judgments  rendered  in  lawful  money.  It  would  be  unreasonable  to  suppose  that  the  legisla- 
ture intended  a  different  rule  as  to  contracts  prior  to  the  enactment  of  currency  laws,  from  that 
sanctioned  by  them  in  respect  to  contracts  since.  We  are  of  the  opinion,  therefore,  that,  under 
the  existing  laws,  of  which,  in  respect  to  legal  tender,  the  constitutionality  is,  we  repeat,  in 
this  case  assumed,  damages  may  be  properly  assessed,  and  judgments  rendered  so  as  to  give 
full  effect  to  the  intention  of  parties  as  to  the  medium  of  payment.  When,  therefore,  it 
appears  to  be  the  clear  intent  of  a  contract  that  payment  or  satisfaction  shall  be  made  in  gold 
and  silver  coin,  damages  should  be  assessed  and  judgment  rendered  accordingly.  It  follows 
that  in  the  case  before  us  the  judgment  was  erroneously  entered.  The  damages  should  have 
been  assessed  at  the  sum  agreed  to  be  due,  with  interest,  in  gold  and  silver  coin,  and  judgment 
should  have  been  entered  in  coin  for  that  amount  with  costs.  The  judgment  of  the  Court  of 
Common  Pleas  must,  therefore,  be  reversed,  and  the  cause  remanded  for  further  proceedings." 

Mr.  Justice  Miller  dissenting.  "  I  believe  the  judgment  of  the  Court  below  was  right,  because 
I  understand  the  original  contract  to  have  been  an  agreement  to  pay  in  English  guineas, 
as  a  commodity,  and  their  value  was  therefore  properly  computed  in  the  legal  tender  notes 
which  by  law  would  satisfy  the  judgment.  I  cannot  agree  to  the  opinion,  for  the  reasons  given 
in  my  dissent  in  the  case  of  Bronson  v.  Rodes." 


CH.  yiil]  exchange.  2G5 

tries,  or  according  to  the  rate  of  exchange  at  the  particuhir  time 
existing  between  them;  as,  for  instance,  a  debt  of  £]0U  is  con- 
tracted in  England  and  is  pa3\able  there,  and  afterwards  a  suit  is 
brought  in  America  for  the  recovery  of  the  amount.  And  on 
this  subject  there  is  considerable  diversity  of  opinion  among  the 
courts  of  this  country.  In  New  York  and  in  Massachu- 
setts it  has  been  distinctly  held,  that  the  debt  is  to  be  [238] 
paid  according  to  the  par  and  not  the  rate  of  exchange, 
and  that  the  creditor  is  not  entitled  to  any  allowance  on  account 
of  the  difference  of  exchange  between  the  country  where  the 
suit  is  brought  and  the  country  where  the  debt  was  payable.* 
While  on  the  other  hand,  Mr.  Justice  Washington,  on  the  Penn- 
sylvania circuit,  and  Mr.  Justice  Story,  on  the  Massachusetts 
circuit,  have  both  held  that  the  creditor  was  entitled  to  recover 
at  the  rate  of  exchange.!  ^ 

*  Martin  j^  Franklin,  4  J.  R.  124;  Scofieid  147;    Woodhull  v.  Warner,   1   Bald.  R.  296 

V.  Day,  20  J.  R.  102;    Adams  v.   Cordis,  8  and  302;    Storv  on    Notes,   §396;    Scott  v. 

Pick.  260.  Bevan,  2  B.  &  Adol.  78;  Deleffal  v.  Navlor,  7 

t  Smith  V.  Shaw,  2  Wash.  Cir.  C.  Rep.  167  Bing.  460;  Ekins  v.  E.  India  Co.  1  P.  "Wms. 

and  168;  Grant  v.  Healey,  3    Sumner,  523.  395;  Lee  v.  'Vfilcocks,  5  Serg.  &  Rawle,  48; 

See    also,  Lanusse  v.  Barker,  3  Wheat.  101,  Cash  v.  Kennion,  11  Vesey,  314. 

As  the  result  of  all  the  cases,  there  cannot  be  much  doubt  that  the  law  stands  at  present  as 
follows:  Where  payment  in  gold  and  silver  coin,  as  money,  is  provided  for  by  the  contract, 
the  nominal  amount  due  in  United  States  notes  will  not  satisfy  the  claim  ;  so,  also,  when  gold 
and  silver,  although  of  the  United  States  coinage,  are  bought  and  sold  as  merchandise,  or  are 
deliverable  in  specie  otherwise  than  as  money,  the  contract  for  such  sale  or  delivery  is  valid, 
and  the  measure  of  damages  for  not  delivering  the  coin  will  be  its  market  value. 

The  Su])reme  Court  has  also  decided  that  the  legal  tender  acts  do  not  prevent  a  State  from 
collecting  its  taxes  in  gold  and  silver  coin,  such  taxes  not  being  debts  within  the  meaning  of 
the  acts.     Lane  Co.  v.  Oregon  (Am.  Law  Rev.  April,  1869). 

1  The  rule  as  to  damages  on  a  bill  of  exchange  drawn  in  this  country  and  payable  in 
England  in  pounds  sterling,  it  is  said,  is  to  estimate  the  pound  at  $4.44,  adding  the  rate  of 
exchange  between  this  country  and  England  at  the  time  of  the  trial,  with  interest.  Where  a 
bill  is  drawn  in  New  York  and  returned  unpaid,  the  damages  are  fixed  by  statute  (1  R.  S.  N. 
Y.  770).  The  general  principle  is  to  allow  the  creditor  what  it  would  cost  him  to  place  the 
amount  of  the  bill  in  the  place  of  payment,  or  to  allow  him  for  reexchange.  Where  the  bill 
is  drawn  abroad,  and  made  payable  here,  the  holder  is  entitled  to  receive  only  the  amount 
named  in  the  bill,  without  exchange.  Guiteman  v.  Davis,  45  Barb.  576,  note.  It  should  be 
observed,  however,  that  by  an  act  of  Congress,  passed  July  14,  1832  (4  Stat,  at  Large,  583),  the 
value  of  the  pound  sterling,  in  calculating  the  rates  of  duties,  was  fixed  at  $4.80,  and  subse- 
quently for  the  pur])ose  of  payments  into  the  United  States  treasury,  and  the  appraisement  of 
imported  merchandise,  it  was  made  equal  to  $4.84  (Act  July  7,  1842,  5  Stat,  at  Large,  496), 

instead  of  $4.44,  which  was  the  previous  valuation  by  law  for  all  revenue  purposes 

Act  March  2,  1799,  ch.  22,  §  61  (1  Stat,  at  Large,  673.) 

And  in  an  action  here  on  a  contract  to  pay  money  in  another  country  (not  a  bill  of 
exchange),  no  exchange  can  be  recovered  although  there  were  no  tribunals  in  that  country  in 
which  the  jdaintifi"  could  sue.     Lodge  v.  Spooner,  8  Gray,  166. 

And  it  is  said  that  in  the  case  of  a  party  coming  from  another  country  into  the  courts  of 
the  United  States  to  enforce  the  payment  of  moneys  which,  if  piaid  abroad  where  they  were 
due,  would  be  paid  in  a  currency  equal  to  gold  when  gold  is  at  a  premium  here,  our  courts 
will  not  add  to  the  nominal  amount  a  sum  sufficient  to  enable  him  to  replace  it  in  gold  in  the 
place  where  it  is  payable.  If  the  debt  were  payable  in  dollars,  the  plaintiff',  like  a  citizen, 
could  recover  the  nominal  amount  of  dollars  and  interest  only.  And  if  the  debt  is  for  so 
many  pounds  sterling,  the  recovery  can  be  for  that  sum  only  converted  into  dollars  at  the  rate 
which  the  pound  sterling  bears  to  the  dollar,  without  any  premium  or  regard  to  the  rate  of 
exchange  between  the  two  countries,  which  is  owing  to  the  want  of  a  specie  currency  here. 
Swanson  v.  Cooke,  45  Barb.  574.  This  decision  is  based  on  the  same  reasoning  with  the  New 
York  cases  cited  in  the  text,  and  conforms  to  the  doctrine  of  that  State,  as  there  stated. 


2G6  NOTES   AND    BILLS.  [cn.    VHI. 

Accommodation  Paper.  —  There  is  also  a  Large  class  of  cases 
where  the  amount  of  recovery  depends  on  the  question  of  con- 
sideration paid  for  the  security,  whether  it  be  a  bill  or  a  note,  or 
on  the  fact  whether  it  was  in  whole  or  part  given  for  the  accom- 

But  if  the  question  were  an  open  one,  the  principles  it  lays  down  mifi^ht  at  first  appear  to 
admit  of  doubt,  us  unnecessarily  substitutinf^  an  artificial  for  a  natural  measure.  It  mij^ht 
seem  more  ])liilosophical  to  hold  that  where  a  debt  or  demand,  payable  in  a  foreifjn  currency, 
lias  here  a  recognized  or  ascertainable  mercantile  value,  and  is  i)roperly  suable  here,  the  meas- 
lu'c  of  damai^es  in  this  country  is  such  actual  value.  Why  should  not  the  forei<;n  cnrrency,  in 
the  absence  of  any  statutory  provision  to  the  contrary,  be  ])laeed  on  the  same  ground  with 
other  commodities,  or  with  gold  and  .silver  coin  regarded  as  bullion,  and  not  as  money,  and 
the  measure  be  in  the  one  case  as  in  the  other,  the  actnal  value  ?  Foreign  coin  is  no  more 
money  here  than  any  foreign  commodity,  unless  it  is  made  so  by  statute,  and  the  arbitrary  rule 
does  not  conform  to  the  jirinciple  of  compensation. 

The  decision  can  be  maintained,  however,  on  the  ground  that  there  is  no  common  standard 
between  the  pajier  dollar  and  the  foreign  coin.  The  relative  weight,  fineness,  and  consequent 
value  of  the  national  coin,  in  this  and  other  countries,  are  susceptible  of  exact  determination, 
and  in  the  Unitetl  States  the  value  of  the  foreign  coin  is  in  fact  ascertained  by  law.  By  the 
act  of  Congress  of  April  2, 1792,  ch.  16  (1  U.  S.  Stat,  at  Large,  246),  silver  dollars,  or  units  of 
value,  and  gold  eagles  with  halves  and  quarters  of  each,  besides  silver  dimes  or  tenths,  half 
dimes  or  twentieths,  and  copper  cents  or  hundredths  of  a  dollar,  were  established  as  coin  of  the 
United  States  ;  by  the  act  of  June  28,  18.34,  ch.  95  (4  U.  S.  Stat,  at  Large,  699),  the  quantity 
of  metal  in  the  gold  coin  of  the  United  States  was  regulated;  by  the  act  of  January  18,  1837, 
ch.  .3  (5  U.  S.  Stat,  at  Large,  136),  §§  8,  9  and  10,  the  weight  and  fineness  of  the  several  na- 
tional coins  were  determined  ;  and  subsequently  the  gold  dollar  or  unit  and  the  double  eagle 
were  established.  Act  of  March  3,  1849,  ch.  109  (9  U.  S.  Stat,  at  Large,  397).  In  addi- 
tion to  the  legislation  already  referred  to  fixing  the  value  of  the  pound  sterling  for  certain 
purposes,  the  following  series  of  acts  establish  and  regulate  for  specific  and  general  purposes 
the  value  of  the  principal  foreign  coins  as  compared  with  our  silver  dollar  :  Acts  February  9, 
1793,  ch.  .')  (1  Stat,  at  Large,  300) ;  March  2,  1799,  ch.  22  (1  Stat,  at  Large,  680,  §  74)  ;  April 
10,  1806,  ch.  22  (2  Stat,  at  Large,  374) ;  June  2.5,  1834,  ch.  71  (4  U.  S.  Stat,  at  Large,  681) ; 
June  28,  1834,  ch.  96  (4  Stat,  at  Large,  700);  March  3,  1843,  eh.  69  (5  Stat,  at  Large,  607) ; 
March  3,  1843,  ch.  92  (.5  Stat,  at  Large,  625).  But  as  the  legal  tender  currency  is  without  in- 
trinsic value,  no  equivalent  in  that  cuiTcncy  to  foreign  coin  can  be  furnished.  The  value  of 
the  foreign  debt,  therefoi'e,  cannot  be  directly  estimated  in  paper  currency,  but  must  necessarily 
be  estimated  in  gold  or  silver  dollars  or  units  of  value.  After  it  is  thus  ascertained  in  dollars, 
the  acts  of  Congress  which  make  all  debts  payable  in  certain  paper  currency  become  applica- 
ble. And  the  foreign  creditor  having  an  ascertained  claim  of  a  certain  number  of  dollars,  is 
neeessarih'  comj)eIled  like  any  other  creditor  to  accept  payment  of  the  amount  in  notes  which 
are  made   by  law  a  legal  tender  for  all  debts. 

In  the  case  inider  consideration,  the  claim  was  an  application  to  the  equitable  power  of  the 
court  to  enforce  the  payment  of  money  improperly  appropriated  by  a  trustee.  Whether  in  such 
a  case  the  court,  as  a  court  of  equity,  might  not  on  other  and  purely  equitable  grounds,  have 
directed  the  ascertainment  and  payment  of  the  actual  value  of  the  debt,  including  the  premium, 
is  a  question  which  does  not  seem  to  have  been  considered. 

The  natural  rule,  however,  of  allowing  the  creditor  the  actual  equivalent  in  currency  of  the 
amount  of  foreign  money  which  his  claim  represents,  is  sanctioned  to  some  extent  by  recent  de- 
cisions. Thus  where  a  libel  for  the  loss  of  a  vessel  on  the  Canadian  shore  of  Niagara  lliver  had 
been  referred  to  a  commissioner,  who  reported  that  the  vessel  was  worth,  at  the  time  of  the 
loss,  a  certain  sum  of  dollars  "  in  gold  or  Canadian  currency,"  which  were  both  at  a  premium 
of  forty -nine  per  cent,  over  United  States  legal  tender  notes,  it  was  held  by  the  United  States 
District  Court  for  the  Northern  District  of  New  York,  in  a  decision  which  was  aflfirmed  on  ap- 
peal, that  the  amount  being  reported  at  a  certain  sum  in  foreign  currency,  was  to  be  estimated 
at  the  value  of  that  sum  in  United  States  notes,  and  that  the  use  of  the  word  "  gold  "  by  the 
commissioner,  did  not  require  that  any  eft'ect  should  be  given  to  the  report  other  than  would 
have  been  required  if  the  value  had  been  stated  in  Canadian  currency  onlv.  Councer  v.  Steam 
Tug  Griflin,  5  Am.  Law  Reg.  (N.  S.)  45. 

So  where  a  seaman  had  shipped  at  Saint  John,  New  Brunswick,  on  board  an  American  ship 
for  a  voyage  to  London  and  back,  he  was  held  entitled  to  recover  in  the  United  States  double 
the  stipulated  wages,  gold  having  then  been  at  a  premium  of  one  hundred  per  cent.  Trecartin 
V.  Ship  Rochambeau,  26  Law  Rep.  564. 

Vice  tvrsd,  in  Nova  Scotia  it  has  been  decided  by  the  Supreme  Court  of  that  province,  that 
United  States  treasury  notes  were  not  a  legal  tender  for  rent  there  payable  in  dollars  and  cents 
of  United  States  currency.  The  Nova  Scotia  Tel.  Co.  v.  Am.  Tel.  Co.  4  Am.  Law  Reg.  (N. 
S.)  365. 


CH.    VIII.]  IMPLIED    WARRANTY.  267 

modation  of  the  party  who  sues.^  "  In  general,"  says  Mr.  Chitty, 
"  between  the  original  parties,  or  a  holder  who  has  not  given 
full  value,  the  defendant  is  at  liberty  to  show  that  he  drew, 
accepted,  indorsed,  or  made  the  bill  or  note  for  the  accommoda- 
tion of  the  plaintifts,  or  one  of  them,  or  of  a  person  for  whom 
he  is  a  trustee,  who  either  expressly  or  impliedly  engaged  to 
provide  for  the  bill ;  or  the  defendant  may  show  that  he  received 
no  consideration,  or  none  that  was  in  point  of  law  adequate,  and 
thus  may  entirely  defeat  the  action,  or  reduce  the  claim."  * 
Therefore,  where  the  defendant  accepted  the  bill  for  the  accom- 
modation of  the  plaintiff,  except  as  to  a  part ;  and  where  the 
plaintiff,  as  indorsee,  had  only  advanced  a  part  of  the  money 
made  payable  by  the  bill  accepted  for  the  indorser's  accommo- 
dation, neither  was  allowed  to  recover  more  than  he  had  ad- 
vanced.!''^ But  the  consideration  of  this  subject,  in  truth, 
appertains  more  properly  to  the  right  of  recovery  than  the 
measure  of  damages ;  and  it  is,  moreover,  so  abundantly  dis- 
cussed in  the  treatises  to  which  I  have  already  referred,  that  it 
is  onl}^  necessary  here  to  advert  to  it. 

It  seems  that  where  a  party  sells  a  note  for  a  valuable  con- 
sideration, there  is  an  implied  warranty  that  the  parties 
whose  names  appear  on  it,  are  able  to  make  a  valuable  [239] 
contract ;  ^  and  so,  where  the  defendant  had  procured  a 
minor  to  indorse  a  note  and  then  put  it  in  circulation,  he  was 
held  liable  for  its  amount.^ 

Notes  Payable  in  Specific  Articles.  —  In  the  United  States, 
notes  are  frequently  given  payable  in  specific  articles ;  and  on 
instruments  of  this  form  a  doubt  has  arisen  whether  they  should 
be  treated  as  to  be  paid  in  money,  or  as  contracts  for  the  de- 

*  Chitty  on  Bills,  9th  English  edition,  70.  J  Lobdcll   v.   Baker,  3  Met.  469;  Thrall  v. 

t  Darnell  v.  Williams,   2    Stark.   R.    166;     Newell,  19  Verm.  202. 
Wiffen  V.  Roberts,  1  Esp.  R.  261. 


(\ 


'  1  In  an  action  by  the  maker  of  a  negotiable  promissory  note,  against  one  who  has  wrong- 
fully negotiated  it,  so  as  to  render  the"  maker  liable  upon  it,  the  measure  of  damages  is  the 
amount  of  the  note;  and  proof  that  the  plaintiff  has  already  paid  the  note  is  unnecessary. 
Decker  v.  Mathews,  2  Kern.  313 ;  affirming  S.  C,  5  Sandf.  439. 

2  Where  the  law  permits  the  assignment  of  a  non  negotiable  promissory  note,  and  owing  to 
the  insolvency  of  the  maker  or  other  sufficient  cause  the  assignee  has  failed  to  recover  the 
amount  from  him  ;  in  an  action  against  the  assignor,  the  measure  of  the  assignee's  damages  is 
the  amount  of  the  consideration  paid  and  interest.  Davis  v.  Harrison,  2  J.  J.  Marsh.  (Ky.) 
189  ;  Whisler  v.  Bratrg,  31  Mo.  124.  See  Braman  v.  Hess,  13  J.  R.  52;  Cook  v.  Clark,  4  E. 
D.  S.  (N.  Y.)  213  ;  Hutchins  v.  McCann,  7  Porter  (Ala.),  94  ;  Noble  v.  Walker,  32  Ala.  456 ; 
French  v.  Grindle,  15  Maine,  163. 

3  In  an  action  to  recover  the  damages  sustained  by  the  plaintiff  by  the  act  of  the  defendant 
in  fraudulently  transferring  to  him  a  promissory  note,  as  a  valid  and  subsisting  demand,  when 
it  had  been  in  fact  previously  paid  and  canceled,  the  measure  of  damages  is,  prima  facie,  the 
amount  of  the  note  and  interest.  The  ability  of  the  maker  to  pay  the  note  will  be  presumed, 
until  the  contrary  is  proved.     Neff  i>.  Clute,  12  Barb.  (N.  Y.)  466. 


268  NOTES    AND    BILLS.  [ciL    VIIL 

livery  of  goods.^  In  New  York,  notes  were  given  in  this  form : 
"  I  promise  to  pay  seventy-nine  dollars  and  fifty  cents,  on  the 
first  day  of  January,  in  salt,  at  fourteen  shillings  per  barrel." 
The  Supreme  Court  *  held  this  to  be  a  contract  for  the  delivery 
of  salt,  and  that  tlie  value  of  the  salt  was  the  true  measure  of 
damages  ;  thus,  45  barrels  and  3-7ths  of  a  barrel  would  have  dis- 
charged the  note,  at  14  shillings  a  barrel ;  and  so,  if  salt  had 
been  only  a  dollar  per  barrel,  at  the  time  specified  for  payment, 
or  delivery,  the  same  quantity  would  discharge  the  note ;  the 
value,  then,  of  45  barrels  and  3-7ths  of  a  barrel,  was  the  rule  of 
damages.  The  Court  of  Errors,  however,  held  the  instrument 
not  to  be  a  contract  for  the  delivery  of  salt  at  all  events,  but 
intended  to  give  the  party  his  election  to  pay  the  sura  expressed 
in  money,  or  in  salt ;  and  that  as  the  defendant  had  neglected  to 
avail  himself  of  the  privilege  of  paying  in  the  specific  article, 
the  payment  Of  the  principal  debt  and  interest  must  give  the 
true  measure  of  damages ;  and  the  judgment  of  the  court  was 
reversed.!  So,  too,  in  Connecticut,  on  a  promissory  note  to  pay 
"  two  hundred  and  fifty  dollars  in  brown  cotton  shirting  at  the 
rate  of  thirty  cents  a  yard,"  the  defendant  offered  to  prove  that 
the  shirting,  at  the  time  and  place  fixed  for  payment,  was  worth 
only  twenty  cents  a  yard.  But  the  evidence  was  excluded  ;  the 
court  holding  that  the  instrument  was  an  acknowledgment  of  a 

debt  for  the  sum  named,  with  an  option  to  pay  it  in  a  cer- 
[240]  tain  way,  which  option  the  defendant  had  failed  to  take 

advantage  of;  and  that  consequently,  the  promise  was  to 
be  regarded  as  a  naked  agreement  to  pay  the  money.t  And  in 
Vermont  it  has  been  recently  said,  "  that  in  that  State,  by  an 
uninterrupted  series  of  decisions,  notes  payable  in  specific  arti- 
cles of  property,  after  the  time  of  payment  has  elapsed,  seem  to 
stand  much  in  the  same  condition  as  notes  payable  in  money, 

*  Gleason  v.  Pinney,  5  Cowen,  152  ;  S.  C.  T.  R.  85.     lu  Maryland  it  has  been  held,  that 

in  Error,  5  Wend.  393,  and  Clark  v.  Pinney,  7  in  an  action  for  breach  of  contract  to  make 

Cowen,  681.  payment  in    tobacco,    the    plaintiflt'  shall   re- 

t  A   similar  contract  was  construed  differ-  cover  the  value  of  the  tobacco  on  the  day  ap- 

cntly,  and,  according  to  the  views  of  the   Su-  pointed  for  payment.     Lyles  v.  Lyles,  6  Har. 

preme  Court  of  New  York,  in  Pennsvlvania,  &  J.  273. 

in  Edgar  v.  Bois,  1 1   Serg.  &  R.  445  ;  and  in         J  Brooks  v.  Hubbard,  3  Conn.  R.  58. 
Tennessee,  McDonald  v.  Hodge,  5  Haywood's 

1  In  Pennsylvania,  when  the  contract  is  to  pay  a  sum  of  money  in  specified  articles,  the 
damages  on  failure  are  the  interest  of  the  money.  And  where  one  contracted  to  buy  land  at  a 
certain  price,  the  payments  to  be  made  in  axes,  it  was  held  that  the  damages  on  the  vendee's 
failure  was  the  interest  on  the  money,  not  the  profit  which  the  vendor  might  have  made  on  the 
axes.  White  v.  Tompkins,  52  Penn.  St.  363.  So  in  Ohio,  the  measure  of  damages  fur  the 
violation  of  an  agreement  to  pay  Si, 500  in  wool,  at  20  cents  per  pound,  is  fifteen  hundred  dol- 
lars, and  not  the  market  value  of  the  wool.  Trowbridge  v.  Holcomb,  4  Ohio  St.  38.  But  in 
Iowa,  in  an  action  on  a  due  bill,  payable  in  flour  on  a  given  day,  the  measure  of  damages  is  the 
value  of  the  flour  on  the  day  when  payment  should  have  been  made.  Davenport  u.  Wells,  1 
Iowa,  598. 


CH.    VIII.]  NOTES   PAYABLE   IN    CHATTELS.  269 

except  in  their  lack  of  negotiability  ; "  and  the  plaintiff  was  held 
entitled  to  recover  under  the  money  counts.*  But  a  note  given 
in  South  Carolina,  "  to  deliver  to  the  plaintiff  or  order  such 
number  of  barrels  of  new  rice  as  will  amount  to  the  sum  of  two 
hundred  dollars,  value  received  this  day,  at  one  dollar  per  cwt.," 
was  held  to  be  clearly  a  contract  for  the  delivery  of  rice  ;  and 
the  measure  of  damages  was  held  to  be  the  value  of  the  rice  at 
the  time  it  was  to  be  delivered,  which  exceeded  considerably  the 
value  fixed  by  the  note.f  In  New  Hampshire,  too,  the  doctrine 
is  maintained  in  relation  to  notes  payable  in  specific  articles,  that 
after  the  time  of  payment  has  elapsed  the  obligation  of  the 
maker  is  not  a  mere  duty  to  pay  money,  but  a  liability  in  dam- 
ages for  the  non-fidfillment  of  his  contract.^  ^  In  Tennessee,  it 
has  been  decided  that  the  measure  of  damages  for  breach  of  a 
covenant  to  pay  a  given  sum  in  a  particular  species  of  paper,  as 
Tennessee,  Alabama,  or  Mississippi  bank  notes,  is  the  specie 
value  of  such  notes,  according  as  it  would  be  for  the  interest  of 
the  covenantor  to  discharge  the  obligation.§  The  court  saying, 
"  Manifestly  on  the  day  the  payment  was  to  be  made  the  cove- 
nantee might  have  discharged  himself  by  the  payment  of  one 
hundred  dollars,  in  paper  of  either  description  described  in  the 
covenant ;  of  course  he  might  have  selected  the  least  valuable 
bank  notes  mentioned.  If  he  failed  to  pay,  and  broke  his  cove- 
nant, what  injury  would  the  covenant  sustain  thereby  ?  Cer- 
tainly, only  the  value  in  money  of  the  article  in  which  payment 
might  have  been  made.  As  the  measure  of  damages  in 
covenant  consists  in  the  value  to  the  covenantee  of  the  [241] 
thing  required  to  be  performed  at  time  of  the  breach, 
the  damages  in  this  case  must  be  the  specie  value  of  the  notes 
in  which  payment  might  have  been  made,  and  in  which  it  would 
have  been  most  to  the  interest  of  the  covenantor  to  have  paid."  ^ 

*  Perry  v.  Smith,  22  Verm.  K.  301.  J  Wilsoa  v.  George,  10  N.  H.  R.  445. 

t  Price  ads.  Instrobe,  Harper,  111.  §  Hixon  v.  Hixon,  7  Humphreys,  33. 

1  So  in  Wisconsin,  an  instrument  in  the  following  form:  "Due  to  J.  A.  Noonan  $300  in 
Watertown  R.  R.  Stock,"  was  held  to  bind  the  promisor  to  pay  so  many  dollars  in  the  stock 
of  the  company  as  "when  counted  at  par"  would  amount  to  $300 — that  is,  the  value  of  the 
stock  and  not  the  nominal  amount  of  money,  furnished  the  measure.  Noonan  v.  Isley,  17  Wis. 
314-  In  Rhode  Island,  where  a  specified  lot  of  cotton  was  to  be  exchanged  at  an  agi-eed  price 
for  a  certain  note  of  a  third  person  who  had  failed,  although  all  the  parties  to  the  contract 
were  at  the  time  of  making  it  ignorant  of  the  failure,  it  was  held  that  the  plaintiiis,  not  having 
received  the  amount  of  the  note  in  cotton  at  the  stipulated  price,  were  entitled  to  judgment  for 
the  value  of  the  note  in  money  upon  that  basis,  with  interest  on  that  value  from  the  day  of  de- 
manding the  cotton.     Bicknall  v.  Waterman,  5  R.  I.  43. 

-  So  in  the  same  State,  on  the  breach  of  a  covenant  to  pay  certain  stocks  at  a  specified 
time,  or  their  equivalent  in  money,  the  measure  of  the  damages  was  held  to  be  what  the  stocks 
would  have  brought  in  the  principal  markets  of  the  United  States  at  the  time  the  contract 
was  broken,  deducting  the  expense  of  the  sale.  Doak  v.  Ex'rs  of  Snapp,  1  Coldwcll  (Tenn.), 
180.  But  in  the  same  State  it  has  been  held,  that  in  an  action  on  an  obligation  to  pay  a  cer- 
tain sum  in  the  bonds  of  a  railroad  company,  the  measure  of  damages  is  the  nominal,  not  the 
market  value  of  the  bonds.  Memphis  &  Little  Rock  R.  R.  Co.  v.  Walker,  2  Head  (Tenn.), 
467. 


270  NOTES    AND    BILLS.  [ciL    VIH. 

I  confess  this  seems  to  me  the  most  correct  view  of  contracts  of 
this  description.^  In  Mississippi,  it  has  been  held  that  if  a  note 
be  given  for  depreciated  bank  paper,  the  measure  of  damages  in 
an  action  on  the  note  is  the  value  of  the  money  at  the  time  the 
note  was  given ;  the  burden  of  the  entire  proof  of  the  case, 
however,  lying  on  the  defendant.  I  cannot  see,  however,  that 
this  case  can  be  defended  on  principle ;  nor  as  it  appears  to  me, 
is  it  consistent  to  deny  a  party  the  right  to  speculate  on  the  rise 
of  a  given  species  of  paper,  as  he  would  have  in  regard  to  any 
article  of  merchandise.*  ^  We  shall  have  occasion  again  to  ad- 
vert to  this  subject  when  we  come  to  treat  of  sales  of  chattels. 

Having  thus  exhibited  the  rules  in  regard  to  promissory 
notes,  which  are  the  simplest  form  of  legal  obligation,  we  turn 
now  to  bills  of  exchange. 

Bills  of  Exchange.  —  If  the  bill  be  properly  an  inland  bill, 
and  if  there  be  no  difference  between  the  currency  or  rate  of 
exchange  at  the  time  and  place  where  the  bill  is  drawn  and 
the  time  and  place  where  it  is  payable,  then  the  measure  of 
damages  is  the  same  as  that  we  have  laid  down  in  regard  to 
notes ;  but  in  regard  to  foreign  bills  of  exchange  generally,  the 
question  becomes  more  complicated  by  the  introduction  of  the 
element  of  reexchange. 

*  Walker  v.  Meek,  12  Sm.  &  M.  495. 

1  Where  one  agreed  to  pay  forty  dollars  (a  year's  rent)  in  specific  articles,  at  prices  and  in 
qnantities  specified,  it  was  held,  that  if  the  tenant  tendered  the  articles  when  due,  the  landlord 
mnst  receive  them,  not  at  their  cash  value,  but  the  stipulated  price  ;  and  if  he  did  not  tender 
them,  the  landlord  could  not  recover  them,  but  must  take  the  forty  dollars  which  was  held  to 
be  liquidated  damages  on  the  tenant's  failure  to  perform.  Heywood  v.  Heywood,  42  Maine, 
229. 

^  See  Green  v.  Sizer,  40  Miss.  530,  where  the  doctrine  is  adhered  to  in  that  State,  and 
applied  to  the  case  of  a  deposit  with  a  banker  during  the  late  civil  war  of  Confederate  treasury 
notes,  Mississippi  cotton  notes,  and  Mississippi  military  treasury  notes,  the  validity  of  which 
obligations,  although  issued  by  authority  of  the  insurgent  government,  is  maintained  on  the 
ground  that  this  government  existed  de/acfo  before  the  notes  were  issued,  and  that  at  the  time 
of  the  deposit  they  passed  from  hand  to  hand  as  representatives  of  value.  In  a  suit  in  Indiana 
for  non-delivery  of  notes  under  an  agreement  to  pay  $900  in  cash  notes  on  "  good  solvent " 
men,  it  was  held  that  the  measure  of  damages  was  not  the  sum  named,  but  the  value  of  the 
notes  to  be  found  by  a  jury.  Williams  ik  Jones,  12  Ind.  561.  The  rule  adopted,  we  think, 
was  right,  and  not  the  less  so  that  what  is  called  solvency  in  Indiana,  as  it  certainly  often  is 
elsewhere,  should  seem  in  the  judicial  apprehension  to  have  been  a  thing  of  uncertain  value. 
So  in  the  same  State,  in  a  suit  on  a  note  payable  in  "good  judgments  on  good  men,"  the  value 
of  the  judgments  is  held  the  measure  of  damages.  Pierce  v.  Spader,  13  Ind.  458.  See  also, 
Parks  V.  Marshall,  10  Ind.  20.  So  in  Alabama;  Williams  v.  Sims,  22  Ala.  512.  Under  a 
written  contract  by  which  the  defendant  undertook  to  deliver  the  plaintiff  two  notes  "  on  " 
certain  named  persons,  or,  if  he  failed  to  do  so,  "  to  make  satisfaction  "  within  four  weeks,  it 
was  held  that  the  measure  of  damages  was  the  value  of  the  designated  notes,  and  that  the 
burden  of  proof  of  their  value  was  on  the  plaintiff,  as  an  essential  ingredient  in  this  case. 
Moore  v.  Fleming,  34  Ala.  (N.  S.)  491.  So  in  Kentucky,  the  measure  of  damages  for  breach 
of  an  obligation  to  pay  in  cash  notes  is  the  value  of  the  notes,  to  which  may  be  added  interest 
from  the  time  when  they  ought  to  have  been  paid.  Marr's  Adm'r  v.  Prather,  3  Mete.  (Ivy.  196). 
But  in  Massachusetts  for  the  breach  of  an  agreement  to  pay  for  jjroperty  bouglu  at  a  stipulated 
price  in  notes  for  the  amount  with  interest,  the  measure  of  damages  is  the  contract  price. 
Worthy  v.  Jones,  11  Gray,  168. 


CH.  viil]  reexchange.  271 

Reexchange.  —  The  general  rule  is,  that  the  holder  of  a  bill 
protested  for  non-payment,  is  entitled  to  the  amount  of  the 
bill,  reexchange,  and  charges, 

"  Reexchange,"  says  Mr.  Chitty,*  "is  the  expense  incurred  by  the  bill  being 
dishonored  in  a  foreign  country  in  which  it  was  payable,  and  returned  to  the 
country  in  which  it  was  made  or  indorsed,  and  there  taken  up.  The  amount  of 
it  depends  on  the  course  of  the  exchange  between  the  countries  through  which 
the  bill  has  been  negotiated.  It  is  not  necessary  for  the  plaintiff  to  show  that  he 
has  paid  the  reexchange  ;  it  suffices  if  he  w  ere  liable  to  pay  it ;  but  if  the 
jury  find  that  there  was  not  at  the  time  any  course  of  reexchange  between  r2421 
the  two  foreign  places,  then  no  reexchange  is  recoverable."  t 

"  By  reexchange,"  says  Mr.  Justice  Story,  "  is  meant  the  amount  for  which  a 
bill  can  be  purchased  in  the  country  where  the  acceptance  is  made,  drawn  on  the 
drawer  or  indorser,  in  the  country  whei-e  he  resides,  which  will  give  the  holder 
of  the  original  bill  a  sum  nearly  equal  to  the  amount  of  that  bill  at  the  time  when 
it  ought  to  have  been  paid,  or  when  he  is  able  to  draw  the  reexchange  bill, 
together  with  his  necessary  expenses  and  interest,  for  that  is  precisely  the  amount 
which  the  holder  is  entitled  to  receive  and  which  will  indemnify  him  for  its  non- 
payment." { 

The  question  of  reexchange  usually  arises  in  regard  to  the 
drawers  and  indorsers ;  for  the  acceptor  is  not,  upon  non-pay- 
ment of  the  bill,  ordinarily  liable  to  the  holder  for  anything 
more  than  the  principal  sum,  and  the  expenses  of  the  protest 
with  interest.§^  But  if  he  has  expressly  or  impliedly  agreed 
with  the  drawer,  or  with  any  indorser,  for  a  valuable  consid- 
eration, to  pay  the  bill  at  its  maturity,  and  has  failed  to  do  so, 
and  the  drawer  or  indorser  has  been  compelled  to  take  up  the 
bill,  and  pay  damages  and  other  expenses  necessarily  incurred 
thereby,  he  may,  perhaps,  be  compellable  fully  to  indemnify 
the  drawer  or  indorser  lor  all  the  damage  and  expense  so  paid 
by  him,  on  account  of  the  breach  of  his  contract. || 

The  subject  of  reexchange  is  very  differently  treated  in 
England  and  in  the  United  States.     The  rate  which  the  holder 

*  Bills,  666.  part  2,  ch.  vi.  666  to  669  ;  Woolsey  v.  Craw- 

t  See,  also,  De  Tastet  v.  Baring,  11  East,  ford,  2  Camp.  445  ;   Napier  v.  Schneider,  12 

265,  where  the  origin  and  principle  of  the  right  East,  420  ;  Baylcy  on  Bills,  ch.  ix.  353  ;  Riggs 

to  re-draw  is  gone  into  at  large.     Mellish  v.  v.  Lindsay,  7   Cranch,  500 ;   Bowen  v.  Stod- 

Simeon,  2   H.    Black.    378,  379;   Pollard  v.  dard,  10  Met.  375;  Pothier  de  Change,  115, 

Herries,  3  B.  &  P.  335.  117. 

t  Story  on  Bills,  400.  It  has  been  decided  in  Pennsylvania,  that 

§  Bowen  v.  Stoddard,  10  Met.  375  ;  New-  the    acceptor    is    not   liable    for   reexchange. 

man  v.  Goza,  2  Louisiana  Annual  R.  642.  Watts  v.  Riddle,  8  Watts,  545. 
(I  Story  on  Bills,  §  398  ;   Chitty  on  Bills, 

1  In  Maine,  in  the  absence  of  a  statutory  provision,  daniages  for  protest  are  not  allowed  in  a 
suit  on  a  promissory  note,  though  brought  by  an  indorsee  against  an  indorser,  and  payable  in 
another  State.    Loud  v.  Merrill,  47  Me.  351. 


272  NOTES    AND    BILLS.  [CH.    VIIL 

is  entitled  to  recover,  depends  in  the  former  country  on  the 
actual  course  of  exchange,  as  proved  at  the  trial;  while  in  this 
country,  with  that  leaning  to  a  fixed  rule  which  we  shall  have 
occasion  again  to  notice,  when  speaking  of  the  subject  of  insur- 
ance, the  amount  of  reexchange  is  generally  regulated  by  posi- 
tive statutory  provision  * 
[243]  To  obtain  a  correct  appreciation  of  this  branch  of  our 
law,  it  is  necessary  to  consult  those  treatises  which  are 
specially  devoted  to  it;  and  1  shall  therefore  content  myself 
here  with  a  brief  examination  of  a  few  of  the  cases  which  have 
been  decided  in  this  country,  and  a  reference  to  the  statutory 
provisions  of  the  various  States ;  in  making  which  it  should  be 
borne  in  mind  that  these  statutes  have  no  extra-territorial 
operation.  Thus  it  has  been  held  in  Massachusetts,  that  the 
statute  of  Maine  which  enacts,  that  in  an  action  on  a  bill  of 
exchange  drawn  or  indorsed  in  that  State  but  payable  out  of 
it,  and  protested  for  non-payment,  the  holder  shall  recover 
three  per  cent,  damages  in  addition  to  the  contents  of  the  bill 
and  interest  —  does  not  entitle  the  holder  to  recover  those 
damages  in  a  suit  against  the  acceptor  in  the  courts  of  Massa- 
chusetts.! 

The  desire  to  establish  a  fixed  rule  in  the  matter  of  reex- 
change, manifested  itself  in  this  country  at  an  early  period  of 
our  colonial  history.  In  Pennsylvania,  as  far  back  as  the  year 
1700,  the  legislature  enacted,  that  if  any  person  within  that 
province  should  draw  or  indorse  any  bill  of  exchange  upon 
any  person  in  England,  or  other  parts  of  Europe,  and  the 
same  should  be  returned  unpaid,  with  a  legal  protest,  the 
drawer  and  all  concerned  should  pay  the  contents  of  the 
bill,  with  twenty  'per  cent,  advance  for  the  dannage  thereof,  in  the 
same  specie  as  the  bill  was  drawn,  or  current  money  of  that 
province,  equivalent  to  that  which  was  first  paid  to  the  drawer 
or  indorser.t  So  in  Massachusetts,  the  old  rule,  founded  on 
usage  (since  modified  by  statute),  was  to  allow  on  all  foreign 
bills  drawn  on  England,  and  probably  also  upon  any  part  of 
Europe,  ten  per  cent,  as  damages  in  lieu  of  reexchange.§^ 

*  Mr.  Chitty,  in  his  Treatise  on  Bills,  188  t  Fiske  v.  Foster,  10  Met.  597. 
and  667,  suggests  the  expediency  of  a  fixed  %  See  Francis  v.  Riicker  et  al.  Ambler,  672, 
rule  analogous  to  those  adopted  hy  the  States  and  Hendricks  v.  Franklin,  4  J.  K.  119.  In 
of  our  Union;  and  among  certain  parties  con-  Ehode  Island,  as  early  as  1743,  an  act  of 
nccted  with  the  trade  between  England  and  similar  purport  was  passed,  fixing  the  dam- 
East  India,  the  subject  is  regulated  by  a  resolu-  ages  at  ten  per  cent.  Brown  v.  Van  Braam,  3 
tion  of  the  East  India  Trade  Committee,  fixing  Dallas,  344,  346. 

all  charges  at  25  per  cent.     Chitty  on  Bills,  §  Grimshaw  t;.  Bender,  6  Mass.  157,  161, 

668.  162. 

1  In  Maine,  the  mercantile  usage  is  the  same.     Wood  v.  Watson,  53  Maine,  300.     Such  a 


CH.    VIII.]  REEXCHANGE.  273 

In  New  York,  the  original  usage  was  to  allow  twenty  per 
cent,  damages,  in  lieu  of  reexchange,  on  all  bills  drawn 
on  England  or  any  part  of  Europe.     In  an  action  brought  [244] 
in   New  York,  on  a  bill  drawn  by  the  defendant  on   a 
Liverpool  house,  indorsed  to  the  plaintiff,  and  protested  for  non- 
payment, the  plaintiff  claimed  twenty  per  cent,  damages,  and 
interest,  together  with  two  per  cent,  for  the   difference  of  ex- 
change, it  being  two  per  cent,  above  par  when  the  defendant 
was  notified  of  the  non-payment  of  the  bill.     But  the  claim  of 
the  indorser  was  refused,  notwithstanding  reliance  was  placed 
on  a  usage  of  the  Chamber  of  Commerce.     Spencer,  J.,  said, 
"  The  right  to  recover  damages  on  the  protest  of  a  foreign  bill 
of  exchange  rests  with   us  on  immemorial  commercial  usage, 

sanctioned    by  a  long  course  of  judicial   decision It  is 

presumed  that  our  rule  to  allow  twenty  per  cent,  on  the  protest 
of  a  foreign  bill,  was  originally  co-extensive  with  the  rule  estab- 
lished in  Pennsylvania,  and  that  the  same  reasons  induced  both 
rules.  The  twenty  per  cent,  was  in  lieu  of  damages,  in  case  of 
reexchange,  and  because  there  was  no  course  of  exchano-e  from 
London  to  New  York,  and  to  avoid  the  constant  fluctuation  and 
uncertainty  of  exchange."  After  saying  that  the  usage  of  the 
Chamber  of  Commerce  was  too  recent  to  alter  the  rule  of  law, 
he  closed  by  stating,  "  In  my  opinion  the  twenty  per  cent,  is  in 
lieu  of  all  claim  for  damages  in  such  cases ;  and  the  claim  for 
the  difference  in  the  price  of  the  bills  cannot  be  supported,  and 
therefore  it  must  be  deducted  in  this  case."  * 

In  a  subsequent  case,  however,  in  the  Court  of  Errors,! 
though  the  twenty  per  cent,  was  allowed,  the  rule  in  regard  to 
the  sum  on  which  it  was  assessed  was  altered.  The  court  de- 
cided that  the  holder  of  a  bill  of  exchange,  drawn  here  on  Eng- 
land and  protested  there,  was  entitled  to  recover  the  contents  of 
the  bill  at  the  rate  of  exchange  on  England  at  the  time  of  the  return 
of  the  dishonored  bill  and  notice  given  to  the  drawer,  and  that 
the  twenty  per  cent,  damages  and  interest  were  to  be  calculated 
on  this  amount,  as  the  principal  sum,  and  not  upon  the  fixed  par 
of  exchange.  The  judgment  of  the  Supreme  Court  was  re- 
versed, but  no  reasons  were  assigned.^  ^ 

*  Martin  v.  Franklin,  4  J.  R.  112.  J  Mr.  Chancellor  Kent  has  stated  the  pres- 

t  Graves  v.  Dash,  12  J.  R.  17.  ent  rules  existing  in  many  of  the  American 

rule  of  damages  established  by  long  usage  has  the  force  of  law.  It  must  be  taken  as  part  of 
the  contract  of  indorsement,  and  cannot  be  changed  by  the  court  whatever  monetary  crisis  may 
occur.     Ibid. 

1  See  Denston  v.  Henderson,  13  Johns.  322.     But  the  holder  of  a  bill  of  exchange  remitted 
to  pay  an  antecedent  debt  is  not  entitled  to  recover  the  twenty  per  cent.     Kenworthy  v.  Hop- 
kins, 1  Johns.  Cases,  108 ;  Thompson  v.  Robertson,  4  Johns.  27. 
18 


274 


NOTES    AND    BILLS. 


[CH. 


VIIL 


[245]  We  have  thus  far  considered  the  damages  and  reex- 
change  on  bills  protested  for  non-payment.  The  same 
general  principles  govern  the  case  of  bills  protested  for  non- 
acceptance.  "  On  failure  of  the  performance  of  the  engage- 
ment that  the  drawer  will  accept,"  says  Mr.  Chitty,*  "  the 
drawer  of  a  bill  will  immediately,  and  before  the  time  specified 
in  the  bill  for  payment,  be  liable  to  an  action,  not  only  for  the 
principal  sum,  but  also  in  certain  cases  for  interest,  reex- 
change,  and  costs,  as  a  consequence  of  the  bill  not  being  hon- 
ored." This  was  decided  as  early  as  the  year  1765,t  and  again 
by  Lord  Mansfield,t  on  the  ground  that  what  the  drawer  had 
undertaken  has  not  been  performed,  the  drawer  not  having 
given  the  credit  which  was  the  ground  of  the  contract ;  and 
the  same  point  was  held  in  an  action  by  the  indorsee  against 
the  indorser,§  each  indorser  being  considered  as  a  new  drawer. 
It  had  been  decided  in  bankruptcy  to  the  same  effect  at  an 
earlier  day ;  ||  and  the  rule  in  this  country  is  the  same.^  -^ 


States,  in  3  Kent's  Com.  lee.  xliv.  116  to 
121. 

The  American  Jurist  for  July,  1829,  vol.  ii. 
p.  79,  contains  an  interesting  article  on  the  sub- 
ject of  Damages  on  Bills  of  Exchange.  It 
states  the  difference  between  the  system  of 
reexchange  in  force  in  Great  Britain  and 
France,  and  that  of  arbitrary  damages 
adopted  in  the  United  States,  ami  discusses 
various  questions,  —  whether  the  European  or 
American  system  is  the  best ;  whether  the 
want  of  a  uniform  law  on  the  subject  in  the 
different  States  is  an  evil;  and  if  so,  in  what 
manner  it  should  be  redressed.  An  able  re- 
port was  made  on  the  subject  by  Mr.  Ver- 
planck  to  the  House  of  Representatives  of 
the  United  States,  in  March,  1826,  maintain- 
ing the  right  of  Congress  to  control  the  sub- 
ject, urging  the  importance  of  establishing  a 
uniform  rule,  and  strongly  contending  for  jthe 
rule  of  actual  reexchange  as  opposed  to  that 
of  arbitrary  damages. 

"  In  fact,"  says  the  report,  "this  principle  is 
the  only  one  which  can  perfectly  and  under  all 
circumstances  and  fluctuations  of  exchange,  se- 
cure anything  like  a  fair  compensation  of  the 
loss  sustained  by  the  holder  of  a  dishonored 
bill,  without  the  hazard  of  one  party  being 
sometimes  but  partially  paid,  or  the  other  op- 
pressed with  the  payment  of  unequal  and  ruin- 
ous  damages If  this   principle   be 

adopted,  no  valid  reason  appears  why  arbi- 
trary damages  should  be  added.  If  provision 
be  made  for  the  substantial  fulfillment  of  the 
engagement  of  the  seller  of  the  bill,  and  if  he 
acted  in  good  faith,  the  requiring   any  addi- 


tional sura  as  a  mulct  or  penalty  for  the  fail- 
ure of  some  other  person,  is  useless  and  un- 
just, and  as  recent  examples  in  some  of  our 
cities  have  proved,  may  be  of  the  most  dan- 
gerous consequences,  and  overturn  the  credit 
of  many  a  fair  trader  who  had  made  the 
amplest  arrangements  to  meet  all  his  engage- 
ments." 

*  Bills,  216. 

t  Bull.  N.  Prius  ;  Bright  v.  Furrier,  269. 

t  Milford  V.  Mayor,  1  Douglass,  54. 

§  Ballingalls  v.  Gloster,  .3  East,  481. 

II  Macarty  v.  Barrow,  2  Strange,  949,  of 
which  a  fuller  report  is  given  in  Chilton  v. 
Whiffin,  3  Wilson,  17. 

Tf  Mason  and  Smedes  v.  Franklin  et  al.  3  J. 
R.  202 ;  and  again  in  Weldon  v.  Buck  et  al. 
4  J.  R.   144. 

In  France  the  rule  appears  different.  On 
the  protest  for  non-acceptance,  the  obligation 
of  the  parties  indebted,  says  Pardessus, 
Cours  de  Droit  Commercial,  part  ii.  tit.  iv. 
ch.  iv.  sec.  7,  vol.  2,  p.  424,  is  either  to  pay, 
to  deposit  the  amount,  or  to  give  security. 
Lorsque  il  (la  personne  poursuivie)  donne  une 
caution,  juge'e  suffisante,  ou  qu'il  consigne,  le 
porteur  n'a  plusjusqu'a  I'eche'ance  de  droits 
a  exercer  ni  contre  lui  ni  contre  les  autres  sig- 
nataires  de  la  lettre  pourexiger  qu'ils  donnent 
un  semblable  cautionnement,  ou  qu'ils  reni- 
boursent,  parceque  I'obligation  des  co-debi- 
teurs  etant  alternative  de  payer,  ou  de  donner 
caution,  I'un  d'eux  etait  libre  de  choisir  le 
mode  qui  leur  convenoit  pour  acquitter  la 
dette  de  tons. 

And  there  are  traces   of  some   similar   or 


1  For  the  defendant's  fiiilure  to  fulfill  his  agreement  to  accept  a  draft  for  the  plaintiff's  ac- 
commodation, the  measure  of  damages  is  not  the  amount  of  the  draft,  but  the  inconvenience 
and  loss  which  the  plaintiff  sustains  from  the  defendant's  ofter  to  accept,  and  failure  to  do  so. 
Ilsley  V.  Jones,  12  Gray  (Mass.),  260. 


CH.   VIII.]  DAMAGES    FOR   NON-ACCEPTANCE.  275 

Non-acceptance.  —  In  New  York,  the  damages  in  cases 
of  protest  for  non-acceptance,  are  by  statute  fixed  at  the  [246] 
same  rate  as  for  non-payment.     This  was  the  rule  before 
the  statute.* 

When  a  bill  is  drawn  in  Alabama,  payable  at  a  place  without 
its  limits,  neither  interest  or  damages  can  be  recovered  of  the 
acceptor  upon  its  dishonor  without  proving  the  law  of  the  place 
of  payment  as  to  such  damages  and  interest.  But  it  is  no  ob- 
jection that  interest  and  damages  for  non-payment  are  included 
in  the  same  entry  of  judgment,  without  specifying  the  amount 
of  each  separately.! 

Interest.  —  Some  points  still  remain  to  be  noticed,  which 
have  a  common  application  to  bills  and  notes.  We  shall  have 
occasion  hereafter  to  consider  the  principles  which  govern  the 
allowance  of  interest,  in  a  separate  place  ;  it  is  sufficient  to  say 
here,  that  the  general  rule  is,  that  though  the  law  does  not  al- 
ways imply  a  contract  on  the  part  of  the  debtor  to  pay  interest 
on  the  sum  he  owes,$  still,  in  the  case  of  a  bill  or  note,  interest 
is  usually  recoverable  from  the  time  it  becomes  due  ;  and  a  bill 
or  note,  payable  at  a  certain  day,  carries  interest  from  that  day, 
unless  the  non-payment  at  the  appointed  time  was  occasioned 
by  the  negligence  of  the  holder.§ 

We  shall  have  occasion  hereafter  to  see  that  the  Eng-  [247] 
lish  courts  are  less  disposed  to  allow  interest  than  those 
of  this  country ;  and  in  accordance  with  this  disposition,  it  ap- 
pears that  there,  when  interest  is  not  made  payable  by  the  bill 
itself,  the  jury  are  not  bound  to  give  it ;  but  it  rests  in  their 
discretion  to  award  it,^  if  they  are  of  opinion  that  the  delay  of 
payment  has  not  been  occasioned  by  the  fault  of  the  holder. 
And  so  in  a  late  case  they  refused  it  where  a  promissory  note 

analogous  custom  in  England.     In  Bright  v.  t  Dickinson  v.  Branch  Bank  of  Mobile,  12 

Furrier,  the  defendant  ottered  to  prove  a  com-  Ala.  54. 

mercial  usage  not  to  pay  till  protest  for  pay-  \  Chitty  on  Bills,  eh.  vi.  p.  662 ;  De  Havi- 

ment;  and    in  BuUer's   Nisi  Prius,  page    266,  land  u.  Bowcrbank,  2  Camp.  50 ;  De  Bernales 

it   is   said,  "When  the  bill  is   returned   pro-  r.  Fuller,  2  Ibid.  426;  Walker  y.  Constable,  1 

tested,     the    party   that    draws     the   bill    is  Bos.  and  Pull.  307. 

obliged  to  answer   the  money  and  damages,  §  Robinson  v.  Bland,  2  Burr.  1077;  Laing 

or   to  give  security  to  answer   the  same  beyond  v.  Stone,  2  Man.   &    Ry.  561  ;  Bann   v.  Dal- 

sea,  within  double  the  time  the  first  bill  ran  zell,  Mood.  &  M.   228;  Greenleaf  y.  Kellogg, 

for."  2  Mass.  R.  568 ;  Cooley  v.  Rose,  3  Mass.  R. 

*  See  reviser's  notes  to  the  22d  section,  1  221  ;  Hastings  v.  Wiswall,  8  Mass.  455  ;  Fo- 

R.  S.  771.     The  point  was  expressly  decided  den  v.  Sharp,  4  J.  R.  183;  Slacum  v.  Pomery, 

in  Welden  et  al.  v.  Buck  et  cil.  4   J.    R.  144 ;  6  Cranch,  221 ;  Cannon  v.  Beggs,  1  M'Cord, 

and  the  same  is  the  rule  in  England.  371. 


1  If  the  jury  award  interest  on  a  bill  dishonored  for  non-acceptance,  the  rate  of  interest 
proper  to  be  allowed  is  that  which  prevails  at  the  place  where  the  bill  was  drawn.  Gibbs  v. 
Fremont,  20  Eng.  L.  &  E.  555;  S.  C.  9  Exch.  25 ;  17  Jur.  820. 


276  NOTES    AND    BILLS.  [CH.    VRL 

had  been  overdue  thirty  years  ;  and  the  court,  on  motion, 
would  not  increase  the  verdict  by  giving  it  * 

A  party  who  guarantees  the  due  payment  of  a  bill  of  ex- 
change by  the  acceptor,  is  liable  for  interest  upon  it  if  it  be  not 
paid  when  due.f^ 

Costs  of  Prior  Suits.  —  Some  other  decisions  have  been  made 
upon  the  subject  of  the  amount  of  recovery,  which  it  may  be 
proper  to  notice.  An  indorser  who  is  sued  on  his  indorsement, 
and  subjected  to  costs,  cannot  recover  those  costs  against  the 
maker.  He  can  only  have  the  amount  of  the  note  and  inter- 
est ;$  "because,"  says  the  Supreme  Court  of  New  York,  "if 
the  indorser  of  a  note  be  duly  fixed,  he  ought  to  pay  it  with- 
out being  sued ;  and  if  he  finds  it  more  convenient  to  delay 
taking  up  the  note  until  he  is  prosecuted  to  judgment  and  exe- 
cution, the  drawer  ovight  not  to  pay  for  that  convenience 

The  mere  fact  of  drawing  the  note  does  not  imply  a  promise  to 
save  the  payee  harmless  from  all  costs  and  charges  that  he  may 
be  subjected  to  as  indorser.  There  must  be  a  special  promise 
to  save  harmless  before  the  payee  can  call  upon  the  drawer  for 
costs  accrued  by  the  default  of  the  payee  (indorser)  himself" 
In  a  suit  against  the  indorser,  the  fees  of  protest  are  a  proper 
charge.§  And  an  indorser  who  has  paid  the  note,  can,  it 
seems,  recover  the  costs  of  protest  against  the  maker.  |j 

On  the  same  principle  it  has  been  held  in  England, 
[248]  where  an  accommodation  acceptor  was  sued  by  a  bond 
fide  holder,  that  as  he  ought  to  have  paid  it  when  de- 
manded, he  could  not  recover  the  costs  against  the  party  who 
had  improperly  indorsed  it  to  the  holder.^  So  also,  the  ac- 
ceptor of  a  bill  with  funds  who  has  failed  to  pay,  is  not  liable 
for  the  costs  of  a  suit  against  the  drawer.**  And  the  indorser 
of  a  bill  is  not  liable  for  the  costs  of  a  suit  by  the  holder 
against  the  acceptor,  nor  for  commissions  paid  on  the  collection 

*  Du  Belloix  v.  Lord  Waterpark,  1  Dow.  |  Simpson  r.  Griffin,  9  J.  R.  131.     Seealso, 

&    Ry.   16;    Bann    v.  Dalzell,  Mood.  &   M.  Steele  v.  Sawyer,  2  M'Cord,  459;  and  Rich- 

228 ;  Arnott  v.  Redfern,  3  Bing.  353  ;  Calton  ardson  v.  Prcsnall,  1  M'Cord,  192,  to  the  same 

V.  Bragg,  15  East,  223;  cited  3  Bing.  359;  point  as  Simpson  v.  Griffin. 

Higgins    V.   Sargent,  2    Bam.  &  Cres.   343;  §  Merritt  d.  Benton,  10  Wend.  117. 

Page    V.  Newman,  9  Barn.  &  Cres.  378 ;    4  ||  Morgan  v.  Reintzel,  7  Cranch,  273. 

Man.  &  Ry.  305.     See  also,  Chitty  on  Bills,  1  Bleaden  v.   Charles,  7  Bing.   246.      See 

ch.  vi.  p.  662,  ei  seq.,  and  cases  there  cited,  and  this  case  commented  on  in  Asprey  v.  Levy,  16 

Starkie  on  Evidence,  tit.  Bills  of  Exchange,  M.  &   W.   851  ;  Roach   v.   Thompson,  1  M. 

Damages.  &  M.  487. 

t  Ackermann  v.  Ehrensperger,    16  M.   &  **  Barnwell  r.  Mitchell,  3  Conn.  101. 
Wels.  99. 

1  But  he  is  not  liable  for  costs  of  a  suit  against  the  maker.     The  Woodstock  Bank  v.  Dow- 
ner, 27  Vt.  540. 


CH.    VIII.]  COSTS   OF   SUIT.  277 

of  the  money  *  In  like  manner  the  indorser  of  a  regular  bill 
who  has  been  sued  by  an  indorsee,  is  not  entited  to  recover 
from  the  acceptor  his  costs  in  such  action.!  But  a  party  who 
makes  or  indorses  or  accepts  an  accommodation  bill  or  note  is 
regarded  as  a  surety,  and  can  charge  the  party  for  whose  benefit 
his  signature  is  given  with  the  costs  of  a  suit  for  the  collection 
of  such  note  or  bill  if  he  be  compelled  to  pay  it.  So  the  ac- 
commodation acceptor  of  a  bill  who  is  sued,  can  recover  his 
costs  of  the  drawer.t  And  so  it  has  been  held  between  the 
accommodation  indorser  of  a  note  and  the  maker.§  ^ 

*  Bangor  Bank  v.  Hook,  5  Greenleaf,  174.2        §  Hubbly  v.  Brown,  16  J.  K.  70;  Baker  v. 
t  Dawson  v.  Morgan,  9  B.  &  C.  618.  Martin,  Adm'r,  3  Barb.  S.  C.  R.  634  ;  and  see 

j  Jones  V.  Brooke,  4  Taunt.  464.  post,  ch.  xi.  Of  Principal  and  Surety. 

^  Where  one  is  estopped  from  denying  his  signature  to  a  note,  as  where  he  has  adopted  the 
signature  knowing  it  to  be  a  forgery,  the  general  rule  will  apply,  and  the  measure  of  the  dam- 
ages will  be  the  whole  amount  of  the  note.  Casco  Bank  v.  Keene,  53  Maine,  103.  See  this 
rule  applied  to  the  case  of  the  signature  of  an  indorser.  Fall  River  Nat'l  Bk.  v.  Buffinton,  97 
Mass.  498. 

^  Disapproved  in  Hargous  v.  Lahens,  3  Sandf.  (N.  Y.)  213. 


CHAPTER  IX. 

THE   MEASURE    OF    DAMAGES    IN   ACTIONS    UPON    POLICIES     OF    INSURANCE- 

Marine  Insurance :  Partial  Loss  ;  Total  Loss  ;  General  Average  ;  the  Principle 
of  Arbitrary  Remuneration.  —  Fire  Insurance.  —  Life  Insurance. 

The  contract  of  insurance  assumes  various  forms  known  under 
the  general  heads  of  Marine  Insurance,  Fire  Insurance,  and 
Life  Insurance.^  The  subject  forms  a  necessary  part  of  a  trea- 
tise on  the  law  of  damages  ;  but,  at  the  same  time,  as  it  has,  like 
the  matter  of  the  last  chapter,  been  fully  treated  of  in  the  sep- 
arate works  devoted  to  this  particular  branch  of  jurisprudence, 
it  would  be  improper  here  to  do  more  than  give  a  general 
outline  of  the  subject. 

Marine  Insurance.  —  Marine  insurance  is  defined  to  be  a  "  con- 
tract of  indemnity  in  which  the  insurer,  in  consideration  of  the 
payment  of  a  certain  premium,  agrees  to  make  good  to  the 
assured  all  losses,  not  exceeding  a  certain  amount,  that  may 
happen  to  the  subject  insured,  from  the  risks  enumerated  or  im- 
plied in  the  policy,  during  a  certain  voyage  or  period  of  time."*  ^ 

*  Duer  on  Marine  Insurance,  vol.  i.  p.  58  ;  Hamilton  v.  Mendes,  2  Burr.  198,  1210. 

1  The  right  to  recover  upon  a  contract  of  insurance  is  commensurate  with  the  loss  actually 
sustained.  Any  evidence  conducing  to  show  the  loss  less  than  that  claimed,  is  admissible. 
The  doctrine  relative  to  mitigation  of  damages  has  no  application  to  such  a  case.  Franklin 
Fire  Insurance  Co.  v.  Hamill,  6  Gill  (Md.),  87. 

2  The  law  of  Marine  Insurance,  which  in  the  plan  of  this  book  is  touched  on  but  lightly,  is 
full  of  nice  questions  as  to  consequential  damages. 

That  the  insurer  is  liable  for  losses  only,  which  are  directly  occasioned  by  a  peril  insured 
against,  is  familiar  law.  But  what  is  or  not  remote,  must  be  governed  by  the  circumstances  of 
the  particular  case.  Where  a  vessel  is  injured  by  a  peril  of  the  sea,  and  further  injury  occurs 
from  the  master's  neglect  to  have  her  repaired ;  where  in  the  case  of  an  insurance  on  cargo, 
the  ship  is  lost  and  the  goods  are  saved,  but  are  afterwards  partially  lost  in  consequence  of  the 
master's  neglect  to  transship  them  ;  and  generally,  where  the  master's  neglect  is  the  immediate 
cause  by  which  the  injury,  although  arising  from  a  peril  insured  against,  produces  the  damage, 
the  insurers  are  not  liable.  See  Copeland  r.  The  N.  E.  Mar.  Insurance  Co.  2  Met.  (Mass.) 
4.32;  Hazard  v.  Same,  1  Sumn.  218;  Schieffelin  v.  N.  Y.  Ins.  Co.  9  Johns.  (N.  Y.)  21  ; 
Cleveland  v.  Union  Ins.  Co.  8  Mass.  308.  But  if  the  loss  was  a  remote  consequence  only  of 
the  negligence  of  the  master  or  crew,  but  a  direct  one  of  a  peril  insured  against,  the  under- 
writers are  not  discharged.  The  American  Ins.  Co.  v.  Bryan,  26  Wend.  563,  583.  So  a  col- 
lision is  a  peril  within  a  policy  insuring  against  the  perils  of  the  sea,  and  the  insured  may 
recover  the  damage  which  was  the  immediate  consequence  of  it,  although  the  vessel  was 
brought  within  the  peril  by  the  fault  of  the  master  or  crew.  Mathews  v.  The  Howard  Insur- 
ance Co.  11  N.  Y.  9;  The  General  Mutual  Ins.  Co.  v.  Sherwood,  14  How.  (U.  S.)  351  (both 


CH.    IX.]  MARINE  INSURANCE.  279 

In  England  this  contract  retains  more  nearly  its  original  and 
proper  character  as  a  contract  of  indemnity  measured  by  the 
actual  loss  ;  but  in  the  United  States  it  has  been  very  materially 
modified  by  the  introduction  of  various  arbitrary  rules ;  among 
which  the  most  prominent  are  the  deduction  of  "  one  third  new 
for  old,"  *  the  doctrine  of  abandonment  for  constructive  total 
loss,  and  the  principles  adopted  in  the  settlement  of  general 
averages.  There  is  no  branch  of  the  law  in  which  the 
rule  of  compensation  has  been  made  so  much  to  yield  to  [250] 
that  of  arbitrary  remuneration,  if  it  may  be  so  called,  in 
other  words,  the  principle  analogous  to  that  of  the  Lex  Aquilia 
of  the  Roman  law,  by  which,  instead  of  an  inquiry  into  the  ex- 
act circumstances  of  the  particular  case,  a  fixed  rate  or  propor- 
tion is  determined,  by  which  the  recovery  in  all  instances  is 
governed. 

The  losses  for  which  the  insurer  becomes  liable  fall  under  one 
of  these  three  heads :  — 

Partial  Loss ; 

Total  Loss ;  or 

General  Average. 

Definitions.  Partial  Loss.  —  Partial  loss  is,  as  its  name  im- 
plies, a  partial  destruction  of  the  thing  insured. 

Total  Loss.  —  A  total  loss  occurs  where  the  thing  insured  is 
physically  destroyed  or  rendered  valueless  ;  or  where,  under  the 
doctrine  of  constructive  losses,  the  deterioration  is  so  great  as 
to  authorize  the  insurer  to  abandon  and  demand  payment  as 
for  an  actual  physical  total  loss.^ 

*  This  is,  however,  common  to  the  English  system. 

in  reversal  of  decisions  below) ;  Street  v.  Augusta  Insurance  Co.  12  S.  C.  (Rich.)  13  ;  De 
Vaux  V.  Salvador,  4  A.  &  E.  420.  These  cases  establish  the  present  rule  on  the  point,  and 
those  of  Peters  v.  The  Warren  Insurance  Co.  14  Peters,  99  ;  Hale  v.  The  Washington  Insur- 
ance Co.  2  Story,  176;  although  followed  in  Massachusetts  (Nelson  v.  The  Suffolk  Insurance 
Co.  8  Cush.  (Mass.)  477),  which  are  in  conflict  with  it,  can  no  longer  be  regarded  as  general 
authority.  But  the  underwriters  in  such  a  case  are  not  liable  to  pay  the  owners  of  the  insured 
vessel  the  damages  which  the  latter  have  been  compelled  to  pay  the  owners  of  the  other  vessel, 
to  avoid  being  sold.  Mathews  v.  The  Howard  Insurance  Co.  11  N.  Y.  9,  supra.  And  where 
a  policy  on  a  boat  excepts  from  the  perils  insured  against,  perils  and  misfortunes  arising  from 
a  want  of  ordinary  care  and  skill  in  lading  or  navigating  her,  the  fact  that  the  master  placed 
her  in  a  dangerous  position  for  being  towed,  is  material  in  determining  the  insurer's  liability. 
Savage  v.  Corn  Exchange  Insurance  Co.  4  Bosw.  (N.  Y.)  1.  A  boat  insured  struck  a  rock 
and  sank.  The  insurers  were  sued.  The  wages  and  provisions  of  the  crew  during  the  deten- 
tion were  not  allowed  to  be  estimated  as  a  part  of  the  damages.  May  v.  The  Delaware 
fnsurance  Company,  19  Penn.  St.  312. 

1  See  Forbes  v.  The  Manufacturers'  Insurance  Company,  1  Gray  (Mass.),  371.  As  to 
memorandum  articles  actual  destruction  is  said  to  be  necessary  to  enable  the  insured  to  recover 
for  a  total  loss.  Depeyster  v.  The  Sun  Mutual  Insurance  Company,  17  Barb.  (N.  Y.)  306  ; 
Navone  v.  Hadden,  9  C.  B.  30. 

If,  however,  such  goods  are  by  perils  of  the  sea  reduced  to  such  a  condition  that  they  could 
not  be  restored  to  the  assured  in  their  original  character,  at  the  original  place  of  their  destina- 
tion, this  is  a  total  loss.     Navone  v.  Hadden,  9  C.  B.  30. 


280  INSURANCE.  [CH.   IX. 

General  Average.  —  General  average,  or  contribution  in  gen- 
eral average,  is  that  sum  which  on  any  sacrifice  of  a  part  of  the 
interests  at  risk  for  the  joint  benefit  of  all,  becomes  due  from 
the  other  parties  to  the  adventure  to  make  up  for  the  sacrifice.^ 

With  these  broad  lines  of  division  in  view,  it  will  not  be  diffi- 
cult to  understand  to  what  extent  the  contract  of  insurance  is 
one  of  indemnity,  and  how  far  it  has  departed  from  its  original 
signification  ;  but  we  should  first  notice  the  exceptions  in  the 
contract  itself. 

Exceptions  to  Kule  of  Indemnity.  —  The  American  policies  on 
vessels  generally  contain  a  declaration,  that  "  no  partial  loss,  or 
particular  average,  shall  in  any  case  be  paid  unless  amounting 
to  five  per  cent."  or  some  similar  clause  ;  and  the  cargo  policies 

have  an  analogous  provision,*  defining  the  extent  of  the 
[251]  underwriters'  liability.     By  these  clauses  it  will  be  seen 

that  in  a  large  class  of  cases  no  partial  loss  whatever  is 
to  be  paid,  and  in  others,  none  unless  amounting  to  a  certain 
portion  of  the  whole  value  insured.  In  the  former  case,  to 
found  a  claim  for  recovery,  the  subject  at  risk  must  be  totally 

*  The  following  is  the  clause  referred  to  in  avei'age  under  twenty  per  cent.,  unless  general ; 

the  text  .as  it  exists  in  the  New  York  policies :  and  sugar,  flax,  flax-seed,  and  bread  are  war- 

Memorandum.  — It  is  agreed,  that  bar,  bundle,  ranted  by  the  assured  _/}ee  /jtoh  average  under 

rod,  hoop,  and  sheet  iron,  wire  of  all  kinds,  seven  per  cent.,  unless  general ;    and   coffee   in 

tin  plates,  steel,  madder,  sumac,  wickervvare,  bags  or  bulk,  pepper  in  bags   or   bulk,  and 

and  willow,  manufactured  or  otherwise,  salt,  rice,  Jree  from  average  under  ten  per  cent.,  unless 

grain  of  all  kinds,  tobacco,  Indian  meal,  fruits  general. 

(whether  preserved  or  otherwise),  cheese,  dry  No  damage  to  be  allowed  for  goods  injured 

fish,  vegetables  and  roots,  rags,  hempen  yarn,  by  spotting,  unless  caused  by   the  immediate 

bags,  cotton  bagging,  and  other  articles  used  contact  of  sea-water  with    the   articles   dam- 

for  bags  or  bagging,  pleasure  carriages,  house-  aged.     In  case  of  partial  loss  by  sea-damage 

hold    furniture,    skins     and     hides,    musical  to  dry  goods,  cutlery,  or  other  hardware,  the 

instruments,   looking-glasses,    and    all    other  loss  shall  be  ascertained  by  a  separation  and 

articles    that    are    perishable    in    their    own  sale  of  the  portion  only  of  the   contents   of 

nature,  are  icarranted  by  the  assured  free  from  the  packages  so  damaged,  and  not  otherwise; 

average,  unless  general;    hemp,    tobacco-stems,  and  the  same  practice  shall  obtain  as  to  all 

matting,  and  cassia,  except  in  boxes,  free  from  other  merchandise,  as  far  as  practicable. 

1  Goods  contribute  on  their  actual  net  value  ;  that  is,  on  their  market  price  at  the  port  of 
adjustment,  free  of  all  charges  for  freight,  duty,  and  expenses  of  landing.  But  in  a  case 
where  the  goods  brought  at  the  intermediate  port  more  than  they  would  have  done  at  the  port 
of  destination,  the  court,  per  Abbot,  C.  J.,  refused  to  set  aside  the  valuation  which  had  been 
adopted,  which  was  the  price  actually  obtained.     Richardson  v.  Nourse,  3  B.  and  Aid.  237. 

Where  the  insured  has  been  forced  to  make  contribution  in  respect  of  an  average  loss,  the 
insurers  are  held  for  that  proportion  of  the  contribution  which  the  value  of  his  interest  as 
assured  bears  to  its  value  as  estimated  for  the  purposes  of  contribution. 

Where  a  quantity  of  rails  shipped  at  London  for  Bombay  for  a  sum  to  be  paid  in  advance 
at  London,  ship  lost  or  not,  were  insured  for  a  sum  which  included  the  freight  by  a  policy  in 
which  they  were  warranted  free  from  particular  average,  unless  the  ship  should  "  be  stranded, 
sunk,  or  burnt,"  and  the  ship  escaped  these  perils,  but  sustained  a  constructive  total  loss,  and 
the  rails  were  saved  and  forwarded  to  their  destination,  for  which  the  assured  was  compelled  to 
pay  freight  to  an  amount  not  exceeding  the  value  of  the  rails,  this  freight  was  held  not 
recoverable  on  the  policy.     The  Great  Indian  Peninsula  R.  Co.  v.  Saunders,  1  B.  and  S.  41. 

See  as  to  adjustment  of  general  average  in  various  cases.  Meeker  r.  Klemm,  11  La.  Ann. 
104;  Nelson  v.  Belmont,  5  Duer  (N.  Y.),  310;  Lee  v.  Grinnell,  Ibid.  400;  Greely  f.  The 
Tremont  Insurance  Company,  9  Cush.  (Mass.)  415  ;  Nimick  v.  Holmes,  25  Penn.  St.  366. 


CH.    IX.]  PARTIAL   LOSS.  281 

lost.  And  as  to  what  constitutes  a  total  loss,  many  very  inter- 
esting cases  have  been  decided.  But  this  inquiry  is  foreign  to 
our  present  subject.  It  is  only  necessary  to  observe,  that  unless 
the  injury  conies  up  to  the  limit  fixed  by  the  policy,  the  in- 
sured can  claim  no  damages ;  he  can  have  no  remuneration  or 
compensation  for  any  loss  less  than  that  required  by  the  contract.^ 
We  have  ah'eady  had  occasion  to  notice,*  that  though  the 
plaintiff's  loss  had  been  made  good  by  charitable  contributions, 
his  claim  for  legal  relief  is  not  thereby  prejudiced  ;  and  there 
are  other  cases  where  he  has  been  allowed  remuneration  beyond 
his  positive  loss.  So,  it  is  no  defense  to  an  action  for  a  partial 
loss  on  a  policy  of  marine  insurance,  that  the  expense  of  the 
repairs  for  the  amount  of  which  the  loss  is  claimed  was  covered 
by  a  loan  made  by  the  correspondent  of  the  owner  on  a  bot- 
tomry of  the  vessel,  and  that  the  bottomry  loan  was  realized  by 
such  correspondent,  after  the  subsequent  total  loss  of  the  vessel, 
out  of  an  insurance  effected  by  him  on  his  bottomry  interest, 
and  no  part  of  the  loan  was  ever  paid  by  the  owner.f  ^ 

Partial  Loss  —  One  Tihrd  New  for  Old.  —  In  regard  to  par- 
tial losses,  the  allowance  of  one  third  neiv  for  old  is  the  most  im- 
portant arbitrary  limitation  of  the  amount  of  relief  which 
usage  has  engrafted  on  the  policy.  In  case  of  a  partial  loss  on 
the  ship,  the  underwriters  are  nominally  liable  on  the  face  of 
their  contract  to  pay  for  the  actual  damage  sustained.  But  it 
is  considered  that  where  old  timbers  or  other  materials  are  re- 
placed by  new,  the  vessel,  when  repaired,  is  better  than  she  was 
before  the  damage  was  sustained.  And  accordingly,  it  is  held 
that  the  assured  must  himself  bear  a  part  of  the  expense  of  the 
repairs.^  Says  Mr.  J.  Story,§  "  If  the  difference  between  the 
value  of  the  vessel  before  the  damage  and  after  the  repairs, 
were  to  be  ascertained  in  each  particular  case  by  actual  inspec- 
tion, there  would  be  no  end  of  controversies ;  and  therefore 
general  usage,  which  the  law  follows  as  founded  on  public  con- 
venience, has  applied  a  certain  rule  to  all  cases."  This  rule  is, 
"  that  the  assured  shall  pay  one  third  part  of  the  expense  of 

*  Ante,  36.  \  Phillips  on  Insurance,  vol.  ii.  p.  197. 

t  Read  v.  Mutual  Safety  Ins,  Co.  3  Sand-  §  Peele  v.  Merchants'  Ins.  Co.  3  Mason,  27. 
ford,  S.  C.  R.  54. 

1  The  Irish  Court  of  Admiralty  has  lately  applied  this  rule  to  the  claims  of  seamen  for 
clothing  lost  by  a  marine  collision.  The  Cumberland,  5  Law  Times  (N.  S.),  496.  See,  as  to 
partial  loss,  Paterson  v.  Harris,  1  B.  &  S.  336. 

2  The  obligation  of  the  insurer,  in  cases  of  partial  loss,  is  simply  to  pay  such  loss.  It  does 
not  extend  to  consequential  losses,  nor  to  loans  obtained  in  a  foreign  port  for  repairs,  though 
the  expense  of  raising  the  money  on  bottomry  is  part  of  the  partial  loss  which  he  must  pay. 
Bradlie  v.  The  Maryland  Ins.  Co.  12  Peters  (U.  S.),  378. 


282  INSURANCE.  [cn.    IX. 

labor  and   materials  necessary  to  make  the   repairs,  and  shall 
recover  only  two  thirds  of  the  underwriters,  it  being  considered 
that  in  general  the  ship  is   better  by  the  amount  of  one 
[252]  third  of  the  expense  of  the  repairs.     This  allowance  is 
called  the  deduction  of  one  third  neiv  for  oldr  *  ^ 
The  Supreme  Court  of  Massachusetts,  speaking  of  this  rule, 
have  said,  "  That  it  is  arbitrary  and  operates  in  some  cases  un- 
justly, giving  to  the  insured  more  or  less  than  a  full  indemnity, 
to  which  only  he  is  entitled  by  the  policy.     The  rule  originated 
from  the  usages  among  merchants  and  underwriters,  probably 
from  the  great  difficulty  of  ascertaining  the  actual  loss  without 
first  repairing  the   damage  done   or  estimating  the  cost  of  re- 
pairs." t 

Other  Arbitrary  Rules  —  Constructive  Total  Loss.  —  Tn  case 
of  total  loss,  it  has  been  settled  that  the  assured  can  abandon 
to  the  underwritei's,  and  claim  payment  of  the  sum  insured. 
This  doctrine  was  not  introduced  into  the  law  of  insurance  until 
long  after  the  contract  was  familiarly  known  to  commerce,  and 
is  very  differently  applied  in  different  commercial  countries.  In 
the  United  States,  whenever  upon  a  disaster  taking  place  the 
thing  insured,  after  making  the  deduction  of  one  third  new  for 
old,  is  found  to  be  damaged  more  than  half  its  value,  the  assured 
can  abandon  to  the  underwriters  and  claim  a  total  loss.  In 
other  words,  instead  of  being  entitled  to  a  compensation  for  the 
actual  damages  sustained,  he  may  recover  the  whole  value  of 
his  interest  at  risk.     This  rule  in  a  modified  form  prevails  in 

France,  and  generally  on  the  continent ;  but  the  English 
[253]  law  firmly  maintains  the  more  salutary  doctrine  that  no 

abandonment  can  be  sustained  unless  the  thing  assured 
is  injured  to  its  full  value. 

General  A\t<;rage  Claims.  —  In  the  United  States,  the  same 
principle  of  arbitrary  remuneration  is  applied  to  claims  made 
on  the  underwriters  in  the  nature  of  general  average,  or  wher- 
ever a  sacrifice  is  made  for  the  common  benefit.  The  interests 
generally  in  jeopardy  in  these  cases  are  the  vessel,  freight,  and 
cargo  ;  and  when  the  sacrifice  is  to  be  made  good  in  general 
average,  the  values  of  these   subjects  are  to  be  arrived  at  as 

*  Phillips  on  Insurance,  vol.  ii.  p.  197.  t  Brinley    v.    National    Ins.  Co.    11    Met. 

195. 

1  The  value  of  a  vessel  lost  is  estimated  according  to  her  value  at  the  port  of  departure, 
making  a  reasonable  allowance  for  wear  and  tear  on  the  voyage  up  to  the  time  of  the  disaster. 
3  Kent's  Com.  243. 


CH.    IX.]  PARTIAL    LOSS.  283 

forming  the  basis  of  computation.  It  seems  to  be  well  settled 
in  this  coimtry  that  the  value  of  the  cargo  is  to  be  arrived  at  by 
taking  the  invoice  prices,  instead  of  instituting  any  inquiry  into 
the  market  value ;  and  this  also  applies  to  cases  of  partial  or 
total  loss.*  The  vessel  and  freight  are  of  more  fluctuating  and 
uncertain  value.  The  actual  worth  of  the  vessel  diminishes 
during  the  voyage,  with  each  day's  wear  and  tear ;  and  the 
value  of  the  freight  is  also  diminishing  by  reason  of  the  wages, 
provisions,  and  expenses,  which  are  in  a  constant  state  of  dis- 
bursement to  earn  it.  In  New  York,  to  arrive  at  the  value  of 
the  vessel,  one-fifth  of  its  value  at  the  time  of  sailing  is  de- 
ducted ;  and  the  freight  contributes  on  one  half,  and  is  con- 
tributed for  on  the  whole.f  ^  And  this  principle  of  arbitrary 
valuation,  though  the  rate  or  proportion  may  differ,  prevails,  we 
believe,  universally  throughout  the  United  States.^ 

It  may  be  proper  to  add,  that  this  arbitrary  remuneration  has 
been  greatly  extended  by  the  general  adoption  in  this  country 
of  the  practice  of  valuation.  It  has  become  habitual  to  value 
the  thing  assured  in  the  policy ;  and  these  valuations  fix  the 
basis  of  recovery,  and  forbid  inquiry  into  the  actual  damage 
sustained,  unless  the  over-estimate  is  so  great  as  to  induce  a 
belief  of  fraud.^ 

We  have  already  had  occasion  to  notice  the  exceptions 
to  the   rule,  that  legal  compensation   is  only  given  for  [254] 
actual  injury,  which  have  been  introduced  into  this  branch 
of  the  law,§     It  is  only  necessary  here  to  remind  the  reader  of 
them. 

Fire  Insurance.  —  When  we  turn  to  the  subjects  of  fire  insur- 
ance, we  find  that  the  policy  retains   much   more   nearly  its 

*  Le  Roy  v.  United  Ins.  Co.  7  J.  R.  343.  here,  however,  it  is  only  necessary  to  call  at- 

t  This  was  the  rule  laid  down  in  the  case  of  tention  thus  briefly. 

Leavenworth  v.  Delafield,  1   Caines,  573,  and  J  So  in  Massachusetts,  it  is  held  that  the 

has  been  acted  on  ever  since.     The  principle  contributory  value  of  freight  in  general  aver- 

has  been  recently  somewhat  shaken  by  Judge  age  is  to  be  ascertained  by  a  deduction  of  one 

Betts    in    the   District   Court   of  the   United  third   of    the  gross   freight.      Humphreys   v. 

States.     The  Mutual  Safety  Ins.  Co.  v.  The  Union  Ins.  Co.  3  Mason,  429. 

George,  vol.  8  Law  Reporter,  361,^  to  which  §  Ante,  242. 

^  Where  there  is  a  total  loss  of  part  of  the  freight,  as  in  the  case  of  a  ship  being  too  dam- 
aged on  the  voyage  to  return,  the  loss  must  be  estimated  on  the  value  of  the  ship  and  freight, 
and  not  that  of  the  freight  only.     Moss  v.  Smith,  9  C.  B.  94. 

2  See  Irving  v.  Manning,  6  C.  B.  391. 

In  cases  of  partial  loss  on  goods  under  a  valued  policy,  the  amount  payable  by  the  insurer 
bears  the  same  ratio  to  the  value  in  the  policy  which  the  price  which  the  goods,  if  sound, 
would  have  sold  for  at  the  port  of  delivery  bears  to  that  which  they  bring  there  in  their  dam- 
aged state.     Usher  v.  Noble,  12  East,  639. 

Where  the  policy  is  open,  the  value  of  the  goods  is  fixed  by  taking  their  invoice  price  at  the 
loading  port,  including  premium  of  insurance  and  commissions.     Ibid. 

'^  Since  reported,  Olcott,  77,  157. 


284  INSURANCE.  [CH.   IX. 

original  character  as  a  contract  of  indemnity.  In  this  branch 
of  the  great  business  of  insurance,  the  practice  of  vahiation  is 
unknown ;  the  doctrine  of  abandonment  has  never  been  intro- 
duced ;  and  the  right  to  recover  depends,  in  all  cases,  on  the 
actual  loss  sustained,  to  be  proved  in  the  particular  instance*  -^ 

In  Ireland,  the  general  rule  in  cases  of  fire  insurance  has  been 
thus  laid  down  in  a  case  where  a  mill  and  machinery  were 
injured  by  fire.  The  court  directed  the  jury  to  say,  "what 
state  of  repairs  the  machinery  was  in,  what  it  would  cost  to  re- 
place it  by  new  machinery,  and  how  much  better,  if  at  all,  the 
mill  in  which  the  machinery  was  placed  would  be  with  the  new 
machinery  than  it  was  at  the  time  of  the  fire  ;  the  difference  to 
be  deducted  from  the  entire  expense  of  placing  there  such  new 

*  An  interesting  discussion  of  some  impor-  opinion  of  the  learned  Chief  Justice  of  the 
tant  points  on  the  measure  of  damages  in  cases  Superior  Court  of  New  Yorlv,  in  Laurent  v. 
of  insurance  against  tire,  will  be  found  in  the     The  Chatham  Fire  Ins.  Co.  1  Hall,  41. 


1  In  an  action  on  a  fire  policy  by  which  the  defendants  were  to  pay,  in  case  of  loss,  all  dam- 
ages not  exceeding  $2,500,  to  be  estimated  according  to  the  cash  value  of  the  property  at  the 
time  of  the  loss,  but  at  the  rate  of  two  thirds  only  of  such  cash  value,  the  insured  were  held 
entitled  to  the  whole  $2,500,  as  that  sum  was  less  than  two  thirds  of  the  cash  value  of  the  prop- 
erty destroyed.  The  court  sustained  the  refusal  of  the  judge  at  Nisi  Prius  to  charge  "  that  as 
plaintiffs  had  another  policy  to  the  amount  of  $2,500  issued  by  another  company  on  said  goods, 
one  half  the  entire  loss  should  be  found  by  the  jury,  and  the  Ashland  Company  (the  defend- 
ants) could  be  legally  charged  with  only  two  thirds  of  such  one  half,  and  interest."  The  Ash- 
land Fire  Ins.  Co.  v.  Houstinger,  10  Ohio  St.  10. 

But  under  a  policy  of  fire  insurance  for  $2,000,  on  property  insured  elsewhere  for  $3,000, 
which  contained  the  following  provisions  :  "  When  property  is  insured  by  this  company  solely, 
three  fourths  only  of  the  value  will  be  taken ;  and  in  cases  of  loss  this  company  will  be  liable 
to  pay  three  fourths  only  of  the  value  at  the  time  of  the  loss,  but  in  no  case  more  than  is  in- 
sured by  this  company.  In  case  of  loss  or  damage  of  property  on  which  authorized  double  in- 
surance subsists,  this  company  shall  be  liable  to  pay  only  such  proportion  thereof  as  the  sum 
insured  by  this  company  bears  to  the  whole  amount  insured  thereon,  such  amount  to  exceed 
three  fourths  of  the  actual  value  of  the  property  at  the  time  of  the  loss,"  the  plaintiff  was  held 
by  the  Supreme  Court  of  Massachusetts  entitled  to  recover  only  two  fifths  of  three  fourths  of 
the  loss.     Haley  v.  Dorchester  Mutual  Fire  Ins.  Co.  12  Gray,  545. 

The  necessary  expenses  of  the  .insurers  in  rescuing  the  insured  property  were  allowed 
them,  and  also  their  expenses  in  selling  it  where  such  a  sale  was  necessary',  although  with- 
out notice  to  the  owners,  where  the  owners  were  not  known  and  no  circumstances  indicated 
who  they  were.  Robinson  v.  The  Corn  Exchange  Insurance  Company,  1  Ab.  (N.  Y.)  N.  S. 
186. 

Where  by  the  terms  of  a  policy  of  insurance  upon  goods  contained  in  the  public  stores,  the 
underwriters  agreed  to  make  good  unto  the  assured,  all  such  loss  as  should  happen  to  the  goods 
by  fire,  "  to  be  estimated  according  to  the  true  and  actual  cash  value  of  the  property  at  the 
time  the  loss  should  happen,"  the  measure  of  damages  was  such  value,  notwithstanding  the  du- 
ties upon  the  goods  had  not  been  paid  or  secured.  Wolfe  v.  The  Howard  Insurance  Co.  3  Seld. 
(N.  Y.)  583. 

A  fire  policy  on  goods  described  generally  as  "  the  property  of  the  insured,  or  held  by  him 
in  trust,"  covers  cloth  of  other  parties  left  with  him  to  be  made  into  clothing,  and  extends  to 
the  whole  value  of  such  goods.  It  is  not  limited  to  the  bailees'  interest  or  lien  for  charges. 
Stillwell  V.  Staples,  19  N.  Y.  401. 

Warehousemen  and  wharfingers  with  whom  goods  are  deposited,  have  an  insurable  interest 
in  such  goods,  although  there  has  been  no  previous  authority  to  insure  given  by  the  real  own- 
ers, nor  any  notice  given  to  them  of  such  insurance;  and  the  insurers  are  entitled  in  such  a 
case  to  recover  from  the  insurance  office  the  full  value  of  the  goods  destroyed  by  fire.  They 
are,  however,  liable  to  account  to  the  true  owners  for  the  excess  of  the  money  received  beyond 
the  amount  of  their  own  charges  in  respect  of  such  goods.  Waters  v.  The  Monarch  Life  and 
Fire  Insurance  Co.  34  Eng.  L.  &  E.  116. 


CH.    IX.]  FIRE   INSURANCE.  285 

machinery."  *  This  rule  has  been  adopted  in  this  country,  in 
cases  where  the  property  is  injured  and  repaired  so  as  to  replace 
it  substantially  as  it  was  before  the  accident.f  But  in  cases  of 
total  destruction,  much  confusion  appears  to  exist. 

Mr.  Greenleaf  has  said.t  that  the  actual  loss  is  to  be  ascer- 
tained by  the  expense  of  restoring  the  property,  without  any 
deduction  for  the  difference  of  value  between  the  old  and  new 
materials  ;  and  on  the  other  hand,  an  effort  was  recently  made 
in  Massachusetts,  in  a  suit  on  a  fire-policy,  to  introduce  the  anal- 
ogies of  marine  insurance;  the  defendants  insisting  on  deduct- 
ing from  the  estimated  cost  of  a  new  building,  the  difference  in 
value  between  the  old  and  such  new  building.  The  property 
had  been  totally  destroyed,  and  a  different  building  had  been 
erected  on  the  premises.  In  this  case  both  these  rules 
were  rejected ;  the  court  saying  as  to  the  latter,  with  [255] 
great  justice,  that  it  was  not  supported  by  any  authority 
or  principle.  They  also  refused  to  sanction  the  principle  laid 
down  by  Mr.  Greenleaf,  saying,  that  if  it  were  followed,  the 
assured  in  some  cases  would  recover  more  than  an  indemnity, 
and  much  more  when  the  building  is  dilapidated  and  out  of  re- 
pairs ;  that  the  underwriters  are  liable  only  to  pay  a  fair  indem- 
nity for  the  loss  ;  and  that,  whatever  the  rule  might  be  when 
the  building  insured  is  partially  injured  by  the  peril  assured 
against,  it  has  no  application  to  cases  like  the  present,  where 
the  building  is  totally  destroyed  and  to  be  replaced  by  a  new 
one ;  and  they  proceeded  to  say,  "  If  the  rule  laid  down  in 
Vance  v.  Forster  were  applied,  the  jury  must  ascertain  by  the 
estimates  and  opinions  of  witnesses,  the  amount  of  the  ex- 
penses of  a  new  building,  and  they  must  estimate  the  value  of 
the  old  building  in  order  to  ascertain  the  difference,  if  any  there 
be,  between  the  new  and  old.  We  can. perceive  no  use  in  requir- 
ing this  double  estimate  ;  for  when  the  plaintiff  is  only  entitled 
to  recover  the  amount  of  the  value  of  the  building  destroj^ed,  the 
estimate  of  the  cost  of  the  new  building  is  useless.  We  are, 
therefore,  of  opinion  that  there  is  no  rule  of  damages  applicable 
to  the  present  case ;  and  that  as  in  all  cases  where  no  rule  of 
damages  is  established  by  law,  the  jury  are  to  decide  upon  the 
question,  and  that  to  their  decision  there  can  be  no  legal  excep- 
tion.    And  a  new  trial  was  ordered. §^ 

*  Vance  v.  Forster,  1  Irish  Circuit  Cases,  %  2  Greenleaf  on  Ev.  §  407. 

51 ;  3  Stephens'  N.  P.  2084.  §  Brinley  v.  The  National  Ins.  Co.  11  Met. 

t  Brinley  v.  The  National  Insurance  Co.  11  195. 
Met.  195, 

1  It  is  a  frequent  provision  in  (American)  fire  policies,  that  in  case  of  loss  the  insurers,  in- 
stead of  paying  it  in  money,  may  rebuild  or  repair  the  premises,  on  giving  notice  to  the  in- 


286  INSURANCE.  [CH.    IX. 

I  see  no  ground  on  which  this  decision  can  be  maintained. 
To  say  that  a  contract  of  insurance  is  a  contract  of  indemnity, 
and  at  the  same  time  that  there  is  no  rule  of  damages  whatever, 
and  that  the  jury  are  to  dispose  of  the  matter  absolutely,  seem 
very  contradictory  propositions.  Nothing  can  be  more  danger- 
ous, in  cases  of  insurance  above  all  others,  than  to  leave  the 
matter  to  the  uncontrolled  arbitrament  of  the  jury-box.  It  is 
well  known  that  owing  to  the  defendants  in  insurance  cases 
being  in  this  country  always  corporate  bodies,  there  exists  an 
extreme  laxity  in  rendering  verdicts,  and  a  very  great  dis- 
position to  stretch  the  justice  of  the  case,  so  as  to  save  in- 
dividuals from  loss.  What  then  more  perilous  than  to  leave 
an  issue  of  this  kind  to  the  absolute  disposition  of  the  jury  ? 

And  the  decision  appears  the  more  remarkable  because 
[256]  the  case  of  Vance  v.  Forster  offers  a  clear  and   simple 

mode  of  arriving  at  the  desired  result  with  accuracy 
and  safety.  The  court  say,  "  We  perceive  no  use  in  the  double 
estimate."  The  utility  of  it  is  twofold.  In  the  first  place,  to 
secure  the  great  object  of  not  leaving  the  matter  to  the  loose 
and  unguarded  decision  of  the  jury ;  and  in  the  second  place, 
because,  no  practical  man,  whether  mason,  or  builder,  or  jury- 
man, has  any  means  of  arriving  at  the  value  of  an  old  or  sec- 
ond-hand building,  save  by  this  very  double  estimate.  He  first 
calculates  what  it  would  cost  to  put  up  such  a  building  origi- 
nally, and  then  how  much  it  has  been  deteriorated.  And  it  is 
only  by  this  twofold  process  that  justice  can  be  arrived  at. 
It  is  a  legal  solecism  to  call  the  contract  of  insurance  a  contract 
of  indemnity,  if  verdicts  upon  policies  are  to  be  governed  by 
the  uncontrolled  discretion  of  the  jury.  This  reasoning  would 
not  be  admitted  even  in  a  common  case  of  trespass  free  from 
malice.  If  a  building  were  destroyed  by  ordinary  negligence, 
would  a  jury  ever  be  told  that,  without  being  governed  by  any 
estimate  of  its  value,  they  are  the  sole  masters  of  the  subject  ? 
Nothing  is  more  important  than  to  reduce  this  branch  of  our 
law  to  system ;  and  nothing  short  of  extraordinary  difficulty  in 
laying  down  a  rule,  difficulty  vastly  greater  than  any  existing 
in  cases  like  this,  should  warrant  a  court  to  shuffle  off  the  mat- 


sured  of  theii*  election  to  do  so.  The  exercise  of  this  election,  by  giving  the  notice,  converts 
the  contract  of  insurance  into  a  building  contract ;  and  in  case  the  rebuilding  is  thereupon  be- 
gun and  discontinued  by  the  insurance  company,  the  rule  of  damages  is  no  longer  the  amount 
insured,  but  that  necessary  to  complete  the  rebuilding.  And  where  several  companies  have 
given  the  notice,  and  the  contract  thus  substituted  is  broken  by  all,  the  insured  can  recover 
against  any  one  of  them  the  whole  cost  of  completing  the  restoration  of  the  ])uilding,  leaving 
the  companv  against  whom  the  judgment  is  recovered  to  obtain  contribution  from  the  others. 
Morrell  v.  Irving  Fire  Ins.  Co.  33  N.  Y.  429. 


CH.    IX.]  LIFE   INSURANCE.  287 

ter  on  the  jury.  The  tribunals  of  Massachusetts  have  long 
been  so  eminent  for  their  learning  and  sagacity,  that  it  is  with 
unaffected  deference  that  any  writer  should  venture  to  differ 
from  them.  Still  I  cannot  persuade  myself  to  refrain  from  this 
criticism. 

Danger  of  Arbitrary  Remuneration.  —  For  a  more  complete 
understanding  of  this  branch  of  our  subject,  the  reader  is  refer- 
red to  the  various  treatises  devoted  to  this  particular  branch  of 
the  law.  But  I  cannot  quit  it  without  expressing  the  opinion 
that  the  principle  of  arbitrary  remuneration  has  been  carried, 
in  this  country,  to  a  very  dangerous  extent.  It  certainly  re- 
moves difficulties,  lessens  the  labor  of  all  parties  concerned  in  the 
inquiry,  and  may  perhaps  be  said,  on  the  whole,  to  do  justice  ; 
but  on  the  other  hand,  it  is  the  business  of  the  law  and  her  offi- 
cers not  to  shun  but  to  grapple  with  difficulties ;  it  hardly  be- 
comes the  dignity  of  jurisprudence  to  declare  its  inability  to 
do  right  in  the  particular  instance;  a  rough  average  of  justice 
is  far  from  satisfactory  to  the  suitor  who  suffers  gross 
hardship  in  the  individual  case,  and  as  applied  to  the  [257] 
subject  of  technical  or  constructive  total  loss,  the  fixed 
rule  holds  out  infinite  temptations  to  fraud  and  litigation.* 

It  has  already  been  stated  that  nice  questions  often  present 
themselves,  as  to  the  amount  and  character  of  the  testimony 
necessary  to  prove  damage  ;  and  in  no  branch  of  the  law  are 
they  more  perplexing  than  in  insurance  cases.  We  shall  have 
occasion  to  recur  to  the  subject  when  treating  of  evidence.  I 
shall  at  present  content  myself  with  referring  to  the  judicious 
language  of  Mr.  Justice  Story .f 

Life  Insurance.  —  Contracts  of  assurance  on  lives  form  an- 
other very  important  division  of  this  branch  of  our  subject. 
Where  the  policy  was  taken  out  on  the  life  of  a  third  person,  it 
was  originally  said  that,  like  marine  and  fire  policies,  it  was  a 
mere  contract  of  indemnity ;  that  if  not  damnified,  the  plaintiff 
could  not  recover  ;  and  so,  where  the  creditors  of  Mr.  Pitt  had 
effected  an  insurance  on  his  life,  and  their  debts  had  been  subse- 
quently paid,  it  was  held  that  they  could  not  recover.^     But 

*  It   is   superfluous    to   name   the   leading  the  very  able  work  of  M.  Alauzet,  —  Traite 

English  anil  French  authors  on  the  subject  of  General  des  Assurances. 

this  chapter,  or  ^Ir.   Thillips'  work,  wiiich  is  t  Rogers    v.    Mechanics'    Ins.   Co.  1    Story 

equally  well  known  ;  but  I  can,  with  jiropriety,  603.     See  a.] so  post,  ch.  xxv. 

mention   the  learned  treatise  with  which  Mr.  |  Godsall  i;.  Boldero,  9  East,  72,  cited,  with 

Duer,  of  New  York,  is  now  enriching  our   li-  approbation,   in  Tyler  v.  iEtna  Fire  Ins.  Co. 

braries;  and  I  may  also  be  allowed  to  state  the  \2  Wend.  507. 
pleasure  and  benefit  that  I  have  received  from 


288  INSURANCE.  [CH.    IX. 

this  case  has  been  overruled ;  and  it  has  been  decided  by  the 
Exchequer  Chamber  that  a  contract  of  life  assurance  is  a  mere 
contract  to  pay  a  certain  sum  of  money  upon  the  death  of  a 
person,  in  consideration  of  the  payment  of  certain  premiums ; 
that  it  is  not  a  contract  of  indemnity ;  and  that  the  termination 
of  a  creditor's  interest  before  the  death  does  not  defeat  the  re- 
covery.* ^ 

*  Dalby  v.  India  and  London  Life  Assurance  Co.  15  C.  B.  365;  28  Eng.  L.  &  E.  312;  18 
Jur.  1024;  3  Com.  Law,  61. 

1  On  a  policy  issued  to  one  person  on  another's  life,  the  sum  insured  is  the  measure  of  the 
insurer's  liability.  Hoyt  v.  N.  York  Life  Ins.  Co.  3  Bosw.  (N.  Y.),  440;  Theobald  v.  The 
Railway  Passengers'  Assurance  Co.  10  Exch.  45.  But  where  in  a  suit  on  a  policy  of  insurance 
by  which  £1,000  was  to-be  paid  to  the  representatives  of  the  assured  in  case  of  his  death  by 
railway  accident,  and  a  proportionate  part  of  that  sum  to  him  in  case  of  his  injury  by  such 
accident,  the  injury  had  fallen  short  of  death,  it  was  held  not  to  be  a  true  measure  of  damages 
to  assume  the  sum  insured  as  the  value  of  the  life,  and  to  estimate  a  proportionate  sum  for  the 
injury.  In  such  a  case,  the  measure  of  damages  is  the  amount  of  injury  the  plaintiff' has  sus- 
tained as  a  direct  consequence  of  the  accident,  having  reference  to  his  occupation  in  life,  besides 
compensation  for  the  personal  expense  and  pain.  Loss  of  time  or  profits  in  such  a  case  are  not 
regarded.  Theobald  v.  The  Railway  Passengers'  Assurance  Co.  26  Eng.  L.  &  E.  432;  10 
Exch.  45;  18  Jur.  583. 

A  policy  upon  life  is  in  its  nature  an  insurance  upon  the  benefits  which  will  or  may  result  to 
the  assured  from  the  continuance  of  the  life ;  and  in  that  respect  is  like  an  insurance  upon 
profits.  Miller  v.  The  Eagle  Life  and  Health  Insurance  Co.  2  E.  D.  Smith's  (N.  Y.)  C.  P.  R. 
268. 


CHAPTER  X. 

MEASURE  OF  DAMAGES  UPON  THE  BREACH  OF  CONTRACTS  FOR  THE  SALE 
OF  PERSONAL  PROPERTY. 

Roman  Law.  —  General  Rule  as  against  Vendor  is,  the  Difference  between  the 
Contraot  Price  and  the  Value  of  the  Article  on  the  Day  fixed  for  Delivery.  — 
How  far  this  Rule  is  modified  by  Payment  of  the  Price  in  Advance.  —  P^xam- 
ination  of  the  Decisions.  —  As  against  Vendee,  the  whole  Price  may  be  recov- 
ered, although  the  Article  be  not  delivered.  —  Rules  of  the  Modern  Civil 
Law. —  Moliiiaius.  —  Pothier.  —  Measure  of  Damages  against  Vendor  upon 
Breach  of  Warranty,  is  the  Difference  between  the  Value  of  the  Article  as 
warranted,  and  its  Value  as  delivered. 

Contracts  for  Sale  of  Personal  Property.  —  We  now  ap- 
proach the  consideration  of  a  large  class  of  cases  falling  under 
the  head  of  the  common-law  action  of  assumpsit,  —  that  of  con- 
tracts for  the  sale  of  chattels  or  personal  property.  These  con- 
tracts may  be  broken,  either  completely,  by  the  vendor's  neg- 
lect to  deliver  the  article,  or  by  the  vendee  refusing  to  pay  the 
price  ;  or  partially,  by  the  article  proving  different  from  some 
warranty  made  in  regard  to  it  at  the  time  of  sale.  Generally 
it  may  be  said  that  these  agreements  furnish  their  own  measure 
of  damages;  in  other  words,  that  courts  of  justice,  without  de- 
siring to  fix  any  arbitrary  rate  of  remuneration,  endeavor  solely 
to  carry  into  effect  the  contract  of  the  parties  ;  and  to  this  rule 
the  only  exception  that  can  be  said  to  exist,  is  that  in  regard  to 
agreements  of  an  unconscionable  and  oppressive  character, 
which  we  have  already  considered.* 

Justinl^'s  Laws.  —  The  general  language  of  the  Roman  law 
is,  that  in  case  of  the  breach  of  contract  of  sale  by  non-delivery, 
the  measure  of  damages  is  all  that  the  buyer  loses  or  fails  to 
gain  in  relation  to  the  thing  itself,  over  and  above  the  price 
paid  ;  id  quod  interest  propter  rem  ipsam  non  habitam.  And, 
embarrassed  by  no  form  of  action,  the  civil  law  incj^uires 
in  each  case  into  the  motives  of  the  defendant,  and  appor-  [259] 
tions  the  damages  according  to  his  delay,  fault,  or  fraud. 

*  Ante,  221,  et  seq. 
19 


290  SALES  OF  PERSONAL  PROPERTY.  [CH.  X. 

The  language  of  the  Digest  on  the  subject  of  damages  for 
non-dehvery  is  as  follows:  Si  res  vendita  non  tradatur,  in  id 
quod  interest  agitur  ;  hoc  est  quod  rem  habere  interest  empto- 
ris.*  Si  traditio  rei  vendita),  juxta  emptoris  contractum,  pro- 
cacia  venditoris  non  fiat,  quanti  interesse  compleri  emptionem 
fuerit  arbitratus  proeses  provincire,  tantum  in  condemnationis 
taxationem  deducere  curabit.  Hoc  autem  pretium  egreditur, 
si  pluris  interest  quam  res  valet,  vel  empta  est.  And  so,  again, 
Quum  per  venditorem  steterit  quominus  rem  tradat,  omnis  utili- 
tas  emptoris  in  ajstimationem  venit,  qua}  modo  circa  ipsam  rem 
consistit.  Neque  enim  si  potuit  ex  vino  (puta)  negotiari  et 
lucrum  facere,  id  asstimandum  est :  non  magis  quam  si  triticum 
emerit,  et  ob  earn  rem  quod  non  sit  traditum,  familia  ejus  fame 
laboraverit.  Nam  pretium  tritici,  non  servorum  fame  necato- 
rum,  consequitur.  Nee  major  fit  obligatio  quod  tardius  agitur, 
quamvis  asstimatio  crescat,  si  vinum  hodie  pluris  sit :  merito ; 
quia,  sive  datum  esset,  haberet  emptor,  sive  non  :  quoniam  saltern 
hodie  dandum  est  quod  jam  olim  dare  oportuit. 

The  form  of  action  prescribed  against  the  seller  of  any  mer- 
chantable commodity,  who  was  in  default  for  not  delivering, 
was  the  ConcUctio  tfiticiaria ;  f  and  when  treating  of  this  subject, 
the  Digest  says :  Si  merx  aliqua,  quae  certo  die  dari  debebat, 

petita  sit ;  veluti  vinum,  oleum,  frumentum,  tanti  litem 
[260]  lestimandum,  Cassius  ait,  quanti  fuisset  eo  die  quo  dari 

debuit;  si  de   die  nihil  convenit,  quanti  tunc  judicium 
acciperetur,  t 

But  these  and  other  texts  of  the  Justinian  law  on  this  subject, 
as  on  many  treated  of  in  that  wonderful  repository  of  acute  and 
profound  but  ill-arranged  decisions,  are  contradictory  and  per- 
plexing. And  their  general  terms  throw  little  light  on  the  com- 
plex relations  of  modern  commerce. 

Seller's  Failure.  —  We  have  first  to  consider  the  cases  aris- 
ing from  the  failure  of  the  seller  to  perform  his   agreement. 

*  Pandects  by  Pothier,  voL  7,  pp.  120,  121,  character  of  which  had  become  dubious  even 

lib.  xix.   tit.  1,  de  Actionibus  Emti  et  Ven-  in  the  time  of  Gains,  took  its  name  from  the 

diti.  act  peculiar  to  it,  namely,  the  mndidio,  or  notice 

t     t  Condictio    triticiaria   a   tritico,    tanquam  given  by  the  plain titf  to  the  defendant,  to  be 

nobilissimo  merciura  genere,  vel  a  primis  edicti  present  on  the  thirtieth  day  to  select  a  judge, 

verbis  dicta,  est  actio  personalis  arbitraria  ad  ut  adjudicem  ca]iiendum,  die  tricesimo  adcsset. 

rem  quamlibet,  prieter  pecuniam  numeratam  Das   Eomische   Privat    Kecht,   von    Wilhelm 

spectans,  et  ex  quacumque  causa  debitam,  vel  Rein,  book  5.     The  condictio  of  the  Digest,  in 

etiam  nostram,  ex  eausis  quibus  condici  potest,  the    time  of  Justinian,  was   a  more   modern 

veluti  ex  causa  furtiva  vel  re  niobili  vi  abrepta.  form.     It  seems  to  have  been  analogous  to  our 

Vicat ;  Vocabularium  Utrius(|ue  Juris,  in  voc.  action   of  debt,   in    that    it    demanded    some 

Conf.  Hevelke,  Juristisches  W^orterbuch.  certain  thing,  or  a  sum  certain  of  money,  the 

The  original  Roman    proceeding,  per  con-  price  of  it. 
diclionem,  one  of  the  earliest  of  their  curious         J  I^'g-  De  Con.  Trit.  lib.  xiii.  tit.  3,  §  4. 
and  complex  forms  of  action,  and  the  true 


CH.    X.]  DAMAGES    AGAINST    VENDOR.  291 

When  contracts  for  the  sale  of  chattels  are  broken  by  the  vendor 
failing  to  deliver  the  property  according  to  the  terms  of  the 
bargain,  it  seems  to  be  well  settled,  as  a  general  rule,  both  in 
England  and  the  United  States,  that  the  measure  of  damages  is 
the  difference  between  the  contract  price  and  the  market  value 
of  the  article  at  the  time  when  it  should  be  delivered,^  upon 
the  ground  that  this  is  the  plaintiff's  real  loss,  and  that  with 

^  See  as  authorities  for  the  pencral  rule,  Norton  v.  Wales,  1  Robertson  (N.  Y.  Su])erior 
Court),  561  ;  Thompson  v.  Howes,  14  Lu.  Ann.  45  ;  Crosliy  v.  Watkins,  12  Cal.  85  ;  Bartlctt 
V.  Hhinihanl,  i:?  (Jray  (Mass.),  429  ;  Zehiier  r.  Dale,  25  Intl.  433  ;  Fessler  v.  Love,  43  Penn. 
313  ;  Wliitr  v.  Tomiikius,  52  Penn.  St.  303  ;  Bush  v.  Holmes,  53  Me.  417  ;  Doak  i'.  Snai)ps' 
Ex'rs,  1  Coldwell  ('l\nn.),  180;  Dana  v.  Fiedler,  2  Keni.  (N.  Y.)  41  ;  McKnight  v.  Dunlop,  1 
Scld.  (N.  Y.)  537  ;  Billings  v.  Vanderbeek,  23  Barb.  (N.  Y.)  546  ;  Barnard  v.  Conger,  6  Mc- 
Lean C.  C.  R.  497;  Halsey  y.  Hurd,  Ibid.  102;  Rawdou  v.  Barton,  4  Tex.  289;  Smith  v. 
Duulap,  12  111.  184;  Cannon  v.  Folsom,  2  Iowa,  101  ;  see  also,  McAllister  v.  Douglass,  1  Cr. 
C.  C.  R.  241. 

Where  a  vendee,  therefore,  has  between  the  time  of  making  the  original  contract  and  that 
liniiti'd  fur  its  perforniance  made  a  sub-contract  for  the  re>ale  of  the  goods  at  a  higher  price 
than  the  market  rate  at  the  time  tixed  for  delivery  under  the  original  contract,  he  cannot 
recover  for  his  loss  of  the  profit  he  would  have  made  by  carrying  out  the  resale.  Williams  v. 
Reynolds,  34  L.  J.  (N.  S.)  2  Q.  B.  221.  Nor  can  the  rule  be  varied  by  an  otier  of  the  defend- 
ants to  sell  to  the  plaintitfs  at  a  price  below  the  market  value  on  the  day  of  delivery. 
Havemeyer  v.  Cunningham,  35  Barb.  (N.  Y.)  515  ;  and  it  applies  where  there  is  a  delivery  of 
a  part  only  of  the  goods  contracted  for  ;  Valpy  v.  ()akly,  16  Q.  B.  941.  W^here  the  vendor 
puts  it  out  of  his  j)ower  to  fulfill  his  contract  of  sale  by  selling  a  portion  of  the  goods  to  a  third 
party  before  the  time  stipulated  for  the  delivery,  the  vendee  in  an  action  for  the  breach  of  the  con- 
tract is  entitled  to  the  difierence  between  the  market  value  and  the  contract  price,  on  all  the 
goods  contracted  to  be  sold,  and  not  merely  those  which  the  vendor  had  thus  put  it  out  of  his 
power  to  deliver.  Crist  v.  Armour,  34  Barb.  (N.  Y.)  378.  Where  the  defendant,  having  con- 
tracted to  deliver  his  crop  of  corn  growing  on  about  30  acres  of  ground  in  merchantable  order 
at  a  stipulated  time  and  price,  one  fourth  of  the  crop  only  turned  out  sound,  and  he  refused  to 
deliver  that  portion  only,  but  insisted  on  delivering  the  whole,  if  any,  it  was  held  a  breach  of 
the  contract,  and  the  vendees  were  held  entitled  to  recover  the  difference  between  the  contract 
price  and  the  market  value  of  the  mei'chantable  corn  on  the  ground.  Hamilton  v.  Ganyard, 
34  Barb.  204. 

The  "  market  value  "  of  the  article  on  the  day  of  delivery,  which  this  rule  fixes  as  the  test, 
requires  the  investigation  of  the  actual  condition  of  the  market,  and  does  not  warrant  the  con- 
sideration of  the  conjectural  consequences  of  a  state  of  things  which  did  not  exist,  e.  g.  a 
probable  fall  in  the  price  of  the  article  in  question,  which  would  have  resulted  had  the 
defendant  delivered  the  quantity  specified  in  the  contract  to  the  plaintiff,  and  had  the  plaintiff 
ortered  it  for  sale  in  the  market.  The  principle  on  which  the  rule- rests  is  the  indemnification 
of  the  injured  party  for  the  injury  which  he  has  sustained.  A  complete  indemnity  requires 
that  the  vendee  should  receive  that  sum  which,  with  the  price  he  had  agreed  to  pay,  would 
enable  him  to  buy  the  article  which  the  vendor  had  failed  to  deliver.  The  value  in  the  market 
on  the  day,  forms  the  readiest  and  most  direct  method  of  ascertaining  the  measure  of  this 
indemnity  in  both  cases  ;  and  accordingly,  where  a  market  value  for  the  article  exists,  the  law 
has  adopted  that  standard.  Dana  v.  Fiedler,  2  Kern.  (N.  Y.)  41  ;  affirming  S.  C.  1  E.  D. 
Smith's  C.  P.  R.  463.  See  also,  Peterson  v.  Ayre,  13  C.  B.  353  ;  S.  C.  24  Eng.  L.  &  E.  382. 
The  ditt'erence  in  value  making  the  rule  in  the  text  is  to  be  taken  at  the  })lace  as  well  as  time 
of  delivery,  where  it  can  be  there  ascertained.  Worthen  v.  Wilmot,  30  Vt.  (1  Shaw)  555; 
Phelps  V.  McGee,  18  111.  155  ;  White  v.  Salisbury,  33  Mo.  150.  But  as  to  the  range  of  inquiry 
in  determining  the  market  value,  see  infra,  279,  note  I.  A  refusal  to  deliver  stock  which  is  to 
be  paid  foi',  is  in  strict  analogy  to  the  rule  under  discussion,  and  the  measure  of  damages  if! 
such  case  is  the  same.  Van  Allen  v.  The  Illinois  Cent.  R.  R.  Co.  7  Bosw.  515.  See  261, 
note  2. 

W^hcre  the  articles  delivered  are  not  what  the  contract  calls  for,  as  in  the  case  of  defective 
machines,  the  measure  of  the  vendee's  damages  is  what  it  would  cost  to  supply  the  deficiency 
■without  regard  to  the  contract  price.  Benjamin  v.  Hiliard,  23  How.  (U.  S.)  149.  If  the  value 
is  unproved  at  the  trial,  the  plaintiff  can  only  recover  nominalj damages.  Billings  v.  Vander- 
beek, 23  Barb.  (N.  Y.)  546.  Interest  upon  the  difierenee  between  the  contract  price  and  the 
market  value,  to  be  computed  from  the  dav  agreed  on  for  the  delivery,  is  included  in  the 
recovery.  Fishell  v.  Winans,  38  Barb.  228" ;  Lattin  v.  Davis,  Hill  &  D.  Supp.  9  ;  Dana  u. 
Fiedler,  2  Kern.  41. 


292  SALES  OF  PERSONAL  PROPERTY.  [CH.  X. 

this  sum  he  can  go  into  the  market  and  supply  himself  with 
the  same  article  from  another  vendor.  *^  It  follows  from  this 
rule,  that  if  at  the  time  fixed  for  the  delivery  the  article  has 
not  risen  in  value,  the  vendee  having  lost  nothing  can  recover 
nothing.  And  it  will  also  be  observed  that  in  laying  down  this 
rule,  the  analogies  of  real  estate  are  departed  from,  and  that 
the  price  paid  or  the  consideration  money  is  not  considered 
conclusive,  but  that  the  actual  value  is  inquired  into. 

A  doubt  may  arise  as  to  what  is  the  time  stipulated  for  deliv- 
ery.^ Where  oats  were  to  be  delivered  "  on  or  about "  a  certain 
day,  it  was  held  that  the  plaintiff  was  not  limited  to  the  differ- 
ence between  the  contract  price  and  the  market  value  on  the 
precise  day  named,  but  might  recover  the  difference  between 
the  contract  price  and  the  market  value  within  a  reasonable 
time  after  that  day.f 

Payment  in  Advance.  —  But  a  different  case  is  presented 
where  the  purchaser  has  paid  the  price  in  advance,  or  has  other- 
wise, as  by  the  transfer  of  stock,  been  deprived  of  the  use  of  his 
property ;  and  here  it  has  been  insisted  that  the  purchaser  is 

not  to  be  limited  to  the  value  of  the  article  at  the  time 
[261]  of  delivery,  but  shall  have  the  advantage  of  any  rise  in  the 

market  value  of  the  article  which  may  have  taken  place 
up  to  the  time  of  the  trial  ;^  and  on  this  point,  different  and 
conflicting  decisions  have  been  made.  In  England  and  in  New 
York  the  latter  rule  is  laid  down,  upon  the  ground  that  the 
purchaser,  having  been  deprived  of  the  use  of  his  property,  is 
entitled  to  the  best  price  he  could  have  obtained  for  the  article 
up  to  the  time  of  the  settlement  of  the  question.* 

*  Dey  V.  Dox,  9  WqM.  129  ;  Davis  v.  Seld.  537  ;  Owen  v.  Routh,  14  C.  B.  (5  J. 
Shields,  24  Wend.   322  ;   Beals   v.   Terrv,   2     Scott)  327. 

Sandf.   S.   C.   127  ;   McKnight  v.  Dunlop,   1         t  Kipp  v.  Wiles,  3  Sandf.  S.  C.  R.  585. 

1  Joslinjr  V.  Irvine,  6  H.  &  N.  512  ;  S.  C.  30  L.  J.  R.  (N.  S.)  Exch.  78  ;  4  L.  T.  R.  (N.  S.) 
251  ;  Clark  v.  Dales,  20  Barb.  42  ;  Belden  v.  Nicolay,  4  E.  D.  S.  14.  But  if  it  he  readily  in 
the  power  of  the  vendee  to  procure  the  article  elsewhere,  it  is  his  duty  to  do  so,  and  his  dam- 
ages in  such  case  are  limited  to  compensation  for  the  delay  and  expense  thereby  sustained. 
Taylor  v.  Read,  4  Paige,  561. 

2  If  no  time  is  fixed  for  the  delivery,  damages  will  be  calculated  from  the  period  at  which  the 
defendant  refuses  to  perform.     Williams  v.  Woods,  16  Md.  220. 

.  ^  See  the  discussion  of  the  rule  in  trover  which  is  the  same ;  post,  479,  note,  and  the  cases 
there  cited.  Qucere  as  to  the  rule  where  there  is  a.  fall'?  Owen  v.  Routh,  14  C.  B.  327.  In 
Belden  v.  Nicolay,  4  E.  D.  S.  (N.  Y.)  14,  while  the  rule  giving  the  vendee  the  advantage  of  the 
rise  in  value  where  the  price  is  paid  in  advance  is  recognized,  no  distinction  is  made  lietween 
the  case  of  the  sale  of  stocks  and  other  personal  property  where  the  price  is  not  paid  in  advance, 
and  in  the  former  case  as  well  as  the  latter,  is  restricted  to  the  difference  in  market  value  on 
the  day  when  the  property  should  have  been  delivered. 

*  Where  at  the  time  of  making  a  contract  for  the  purchase  of  personal  property  in  futuro 
a  small  sum  was  paid  as  earnest  money  but  was  returned  before  the  vendor's  breach  of  the 
contract  or  any  tender  of  the  rest  of  the  purchase  money,  this  was  held  not  such  a  i)aymcnt  in 
advance  as  to  come  within  the  rule  stated  in  the  text.  Worthcn  r.  Wilmot,  30  Vermont 
(1  Shaw),  555. 


CH.    X.]  DAMAGES    AGAINST    VENDOR.  293 

A  review  of  the  decisions  will  best  illustrate  this  rule.  Iii 
an  early  case  *  the  defendant  had  agreed,  in  consideration  of 
the  receipt  of  £202  10s.,  to  convey  five  shares  of  the  Welsh 
copper  mines,  as  soon  as  the  books  should  be  opened ;  this  was 
done  on  the  22d  of  August,  but  the  defendant  refused  to  de- 
liver. The  value  of  the  stock  was  then  £175 ;  and  this  sum 
was  held  to  be  the  measure  of  damages ;  for,  said  Lord  Mans- 
field, though  the  defendant  received  from  the  plaintifl'  £262 
10-9.,  yet  the  difierence  money  only  of  £175  was  retained  by 
him  against  conscience,  and  therefore  the  plamtifi^  ex  equo  et  bono 
ought  to  recover  no  more ;  if  the  five  shares  had  been  of  more 
value,  3^et  the  plaintiff  could  onl}'^  have  recovered  the  £202  lOs. 
in  this  form  of  action,  namely, /or  money  had  and  received.  It  is  to  be 
noticed  of  this  case,  as  was  well  observed  by  Mr.  Justice  Suther- 
land, in  the  Supreme  Court  of  New  York,t  that  it  decides  noth- 
ing as  to  the  rule  of  damages  where  the  action  is  not  for 
money  had  and  received,  but  is  brought  upon  the  contract 
itself 

In  a  later  case  in  the  King's  Bench,t  a  writ  of  inquiry  was 
issued  to  assess  damages  on  a  bond  given  by  the  defendant, 
conditioned  to  replace,  on  the  1st  of  August,  1799,  a  quantity 
of  stock  lent  him  by  the  testator.  The  only  question  was 
whether  the  damages  should  be  calculated  at  the  price  of  the 
stock  on  the  1st  of  August,  or  at  the  price  on  the  day  of  trial ; 
and  the  latter  sum  was  held  the  true  rule  of  damages.  Grose, 
J.,  said,  "The  true  measure  of  damages,  in  all  these 
cases,  is  that  which  will  completely  indemnify  the  plain-  [262] 
tiif  for  the  breach  of  the  engagement."  And  Lawrence, 
J.,  said,  "  Suppose  a  bill  were  filed  in  equity,  for  a  specific  per- 
formance of  an  agreement  to  replace  stock  on  a  given  day, 
which  had  not  been  done  at  the  time,  would  not  a  court  of 
equity  compel  the  party  to  replace  it  at  the  then  price  of  stock, 
if  the  market  had  risen  in  the  mean  time  ?  " 

In  a  still  more  recent  case,§  of  a  bond  to  re-transfer  stock, 
the  same  principle  was  laid  down.  It  was  contended  for  the 
plaintiff,  that  he  was  entitled,  at  his  option,  to  the  best  of  three 
prices :  either  the  value  of  the  stock  on  the  day  fixed  for  the 
transfer ;  or,  secondly,  the  price  at  the  day  of  trial ;  or,  thirdly, 
the  highest  price  which  the  stock  had  borne  between  the  day 
of  delivery  and  the  day  of  trial.  But  the  court  held,  on  the 
particular  circumstances  of  the  case,  that  the  third  claim  could 

*  Dutch  V.  Warren,  2  Burr.  1010  ;  also,  but  t  Clark  v.  Pinney,  7  Cowen,  681  and  689. 

not  so  clearly  reported,  1   Str.  406,  cited  by  %  Shepherd,  Ex'or,  &c.,  v.  Johnson,  2  East, 

Lord  Mansfield  in  deliverinj;  his  judgment  in  211. 

Moses  V.  Macferlan,  2  Burr.  1005.  §  M'Arthur  v.  Seaforth,  2  Taunt.  257. 


294  SALES    OF    PERSONAL   PROPERTY.  [cil.    X. 

not  be  sustained.  It  seems  difficult,  however,  in  reason,  to  say 
why,  if  the  plaintiff  is  entitled  to  a  subsequent  rise,  provided  it 
maintain  itself  to  the  day  of  trial,  he  should  be  prejudiced  by  a 
fall  that  may  be  due  only  to  the  delays  of  litigation.* 

Where  an  action  was  brought  f  to  recover  damages  for  the 
breach  of  a  contract,  by  which  the  defendant  had  engaged  to 
furnish  the  plaintiff  a  certain  quantity  of  tallow  in  all  Decemher, 
at  65^.  per  cwt,  the  defendant  had  apprised  the  plaintiff,  on  the 
1st  of  October,  that  he  could  not  execute  the  contract,  and  he 
insisted  that  the  difference  between  the  contract  price  (655.)  and 
that  of  the  first  of  October  (7l5.)  was  the  rule  of  damages,  on 

the  ground  that  the  plaintiff  could,  as  soon  as  apprised 
[263]  that  the  contract  would  not  be  executed,  have  gone  into 

the  market  and  supplied  himself  at  the  then  rates.  The 
plaintiff,  however,  insisted  that  he  was  entitled  to  the  difference 
between  the  contract  price  (65.5-.)  and  the  price  on  the  31st  De- 
cember (81^.),  that  being  the  last  day  for  the  performance  of 
the  contract;  and  of  that  opinion  was  the  court.  Park,  J., 
said,  "  For  anything  that  appears,  the  plaintiff  never  assented 
to  rescind  the  contract,  and  the  defendant  might  have  delivered 
the  tallow  at  any  moment  up  to  the  31st of  December;  and  the 
price  on  that  day  should  have  regulated  the  verdict  of  the 
jury." 

The  principle  of  this  case  was  also  applied  in  a  recent  decis- 
ion, %  in  which  the  distinction  between  contracts  altogether  exec- 
utory and  those  where  payment  has  been  made,  is  clearly  taken. 
Assumpsit  was  brought  for  the  non-performance  of  contracts 
for  the  sale  and  delivery  of  50  bales  of  bacon,  to  be  shipped 
from  Waterford  in  1823.  On  the  assessment  of  the  writ  of  in- 
quiry, the  jury  were  told  that  they  were  at  liberty  to  calculate 
the  damages  according  to  the  price  of  bacon  on  the  day  when  the 

*  Two  later  decisions  in  the  English  books  fectually  prevented  him  from  doing  so."    Har- 

hold  substantially  the  same  doctrine.     In  an  rison   v.   Harrison,   1    Car.  &  P.  412.      The 

action  on  a  bond  conditioned  to  replace  stock  subject  has  again  been  recently  examined,  and 

at  a  particular  day,  the  defendant  not  having  this  rule  adhered  to.     Owen  v.  Eouth,  14  C. 

replaced  it.  Lord  Ellenborough  held  at  Nisi  B.  (5  J.  Scott)  327. 

Prius,  that  the  plaintiff  was  entitled  to  claim         In   a   recent   case   of   detinue   for    railway 

according  to  the  value  upon  the  day  of  the  shares,  the  plaintiff  demanded  the  shares  on 

trial.     Downes  v.  Back,   1    Starkie,  318.     In  the  17th  May,  1845,  when   they  were  worth 

an  iiction  on   a  bond  to  replace  stock,  Best,  £3  5s.  per  share,  and  they  were  not  delivered 

C.  J.,  at  Nisi  Prius,  held  that  the  price  of  the  till  the  25th  of  November  of  the  same  year, 

stock  should  be  taken  as  at  the  time  of  the  when  they  had  fallen  to  .£1.     The  measure  of 

trial,  saying,  "When  the  defendant  had  the  damages  was  held  to  be  the  difference  between 

money,  he  promised  to  restore  the  stock.    Jus-  these  two  sums.     Williams  v.  Archer,  5  Man. 

tice  is  not  done  if  he  does  not  place  the  plain-  Gr.  &  Scott,  318  ;  Archer  v.  Williams,  2  Car. 

tiff  in  the  s.ame  situation  in  which  he  would  &  Kir.  26. 

have  been  if  the  stock  had  been  replaced  at  the        t  Leigh   v.   Patterson,    8    Taunt.   440  ;    2 

stipulated  time.     We  cannot  act  on  the  possi-  Moore,  588,  S.  C. 

bility  of  the  plaintiff's  not  keeping  it  there.         %  Gainsford  v.  Carroll,  2  B.  &  Crcs.  624. 
All  we  can  say  is,  that  the  defendant  has  ef- 


I 


CH.   X.]  DAMAGES    AGAINST    VENDOR.  295 

inquiry  was  executed,  and  that  the  difference  between  that  and 
the  contract  price  ought  to  be  the  measure  of  damages.  On  a 
rule,  nisi,  to  set  this  inquisition  aside,  upon  the  ground  that  the 
plaintiff  was  only  entitled  to  recover  the  difference  between 
the  contract  price  and  the  price  on  the  day  when  the  bacon  was 
to  be  delivered,  the  court  said  that  the  cases  of  Shepherd  v. 
Johnson,  and  M' Arthur  v.  Seaforth,  did  not  apply.  "/«  the  case  of 
a  hem  of  stock,  the  horrower  holds  in  his  hands  the  money  of  the  lender, 
and  therehy  prevents  him  from  using  it  altogether.  Here  the  plaintiff 
had  his  money  in  his  possession,  and  he  might  have  purchased 
other  bacon  of  the  like  quality  the  very  day  after  the  contract 
was  broken ;  and  if  he  sustained  any  loss  by  neglecting  to  do 
so,  it  is  his  own  fault.  We  think  the  under-sheriff  should  have 
told  the  jury  that  the  damages  should  be  calculated  according 
to  the  price  of  bacon  at  or  about  the  day  when  the  goods  ought 
to  have  been  delivered ; "  and  the  rule  was  made  absolute. 

So  in  an  action  for  the  non-delivery  of  railway  shares  on  a  given 
day,*  pursuant  to  contract,  the  property  not  having  been  paid 
for,  the  measure   of  damages  is  the  difference  between 
the  contract  price  and  the  market  price  on  the  day  wdien  [264] 
the  contract  was  broken.^ 

So  the  vendee  of  shares  in  a  projected  railway,  under  a  con- 
tract to  be  completed  at  a  future  day,  may  recover  as  damages 
for  the  non-delivery  the  difference  between  the  price  agreed  on 
and  the  market  price  on  the  day  on  which  the  defendant  refused 
to  complete  the  sale,  and  that  only.^  He  is  not  entitled  to  dam- 
ages in  respect  to  an  advance  of  price  taking  place  afterwards 
at  the  time  of  the  actual  issue  of  the  scrip.  In  other  words, 
the  time  when  the  defendant  refused  to  comply  with  his  con- 
tract, is  the  determining  point.f 

*  Shaw  V.  Holland,  15  Mees.  &  Wels.  136.  on  the  day  of  trial;  but  iipon  consideration,  I 

In  this  case,  Parke,  B.,  said,  "With  respect  to  think  it  more  resembles  an  action  for  the  non- 

the   amount   of  damages,   I   was  at  first  dis-  delivery  of  goods.     Here  the  plaintitF  had  his 

posed  to  think  that  this  was  like  an  action  for  money  in  his  own  possession." 

not  replacing  stock,  in  which  the  measure  of  t  Tempest  v.  Kilmer,  3  Man.  Gr.  &  Scott, 

damages  is  the  difference  of  price  on  the  day  249. 
on  which  it  ought  to  have  been  replaced  and 

1  Rand  v.  The  White  Mountains  R.  R.  Co.  40  N.  H.  79,  See  Jones  v.  Chamberlain,  30  Vt. 
196 ;  Tayloe  v.  Turner,  2  Cr.  C.  C.  R.  203. 

Where  persons  contracting  to  perform  certain  work  in  constructing  a  railroad,  agreed  to  re- 
ceive a  portion  of  their  compensation  in  the  stock  of  the  company,  at  its  par  value,  to  be  paid 
within  thirty  days  after  the  receipt  of  the  engineer's  certificate  of  completion  ;  held,  that  the 
company  were  not  bound  to  seek  the  conti'actors,  and  tender  the  stock  on  that  day.  This  was 
not  an  agreement  to  pay  a  certain  sura  in  specific  articles,  but  an  agreement  to  receive  payment 
in  a  depreciated  currency  —  in  stocks  known  to  be  much  below  par.  The  contract  was  un- 
doubtedlv  made,  and  the  prices  fixed  with  direct  reference  to  the  medium  of  payment.  Moore 
V.  The  Hudson  River  Railroad  Co.  12  Barb.  (N.  Y.)  156.  See  Jones  v.  Chamberlain,  30  Vt. 
1  Shaw,  196. 

'■^  So  in  Van  Dieman's  Land  Company  v.  Cockerel],  1  C-  B.  (N.  S.)  732. 


296  SALE  OF  PERSONAL  PROPERTY.  [CH.  X. 

Tlie  principle  of  the  English  cises  has  been  followed  in  New 
York.^  In  a  case  in  that  State,*  assumpsit  was  brought  by  a 
pawnor  against  a  pawnee  who  had  sold  the  pledge  (a  note)  be- 
fore application  to  redeem ;  and  it  was  held  that  the  plaintiffs 
were  entitled  to  recover  the  value  of  the  note  at  the  time  of 
the  application,  and  not  at  the  time  of  the  pledge. 

In  the  same  State,!  suit  was  brought  on  a  contract  to  deliver 
salt  which  had  been  paid  for ;  and  the  court  held  that  the 
measure  of  damages  was  the  highest  price  between  the  time 
fixed  by  the  contract,  and  the  time  of  trial .^ 

In  a  late  case  in  the  same  State,t  the  subject  was  very  fully 
discussed,  and  the  distinction,  accompanied,  however,  by  some 
proper  qualifications,  clearly  declared.  It  was  an  action  of 
assumpsit  on  a  note,  promising,  for  value  received,  to  pay  one 
hundred  and  fifty  dollars  in  good  salt,  at  one  dollar  and  a  half 
per  barrel,  to  be  delivered  on  the  15th  of  April  then  next. 
This  the  court  held  to  be  a  contract  to  deliver  salt,  and  decided, 
that  as  the  goods  had  been  paid  for,  the  measure  of  damages 
was  the  difference  between  the  contract  price  and  the  highest 
value  at  any  time  between  the  period  for  delivery  and  the  day 
of  trial  ;^  and  Sutherland,  J.,  said, — 

"  We  hold  it,  therefore,  to  be  settled  by  authority,  and  rightly  settled  upon 
principle,  that  where  a  contract  is   made  for  the  sale  and  delivery  of  goods  or 

chattels,  and  the  price  or  consideration  is  paid  in  advance,  and  an  action 
r2651   is  brought  upon   the  contract  for  the  non-di livery,  the  plaintiff  is  not 

confined,  in  measuring  his  damages,  to  the  value  of  the  articles  on  the 
day  when  they  should  have  been  delivered.  But  we  doubt  the  propriety  of  giv- 
ing the  vendee,  in  all  cases,  as  a  measure  of  damages,  the  highest  price  of  the 
article,  between  the  day  when  it  should  have  been  delivered  and  the  day  of  trial ; 
if  he  immediately,  or  without  any  unreasonable  delay,  commence  and  prosecute  his 
action,  we  think  it  just  and  proper  that  the  fluctuations  in  price  should  be  exclu- 
sively at  the  hazard  of  the  defendant,  the  plaintiff  having  done  everything  in  his 
power  to  have  the  contract  settled  and  adjusted,  and  which  is  prevented  solely  by 
the  laches  or  default  of  the  defendant.  In  such  a  case,  therefore,  the  plaintiff  is 
entitled  to  the  highest  price  between  the  day  when  the  delivery  should  have  been 

*  Oortelyou  v.  Lansing,  2  Cai.  Cas.  200.  %  Clark  v.  Finney,  7  Cowen,  681. 

t  West  V.  Wentworth,  3  Cowen,  82. 

1  Day  V.  Perkins,  2  Sandf.  Ch.  359. 

*■'  Such  is  the  rule  also  in  California.  Dabovich  v.  Emeric,  12  Cal.  171  ;  Mnhcr  v.  Eiley,  17 
Cal.  415.  In  the  latter  case  the  court  sustained  an  alternative  instruction  to  the  jury  that  they 
might  find  the  amount  of  the  purchase-money  and  interest,  or  the  highest  market  price  of  the 
property  to  the  time  of  trial. 

^  Whatever  question  there  may  be  on  principle  as  to  this  rule,  it  seems  now  settled  in  New 
York,  both  as  regards  the  breach  of  contracts  for  the  delivery  of  stock  (Arnold  v.  Suftblk  Bank, 
27  Barb.  424)  and  of  other  personal  property.  See,  in  addition  to  the  cases  in  the  text,  those 
in  trover,  cited  post,  479,  note. 


CH.    X.]j  PRICE   PAID    IN    ADVANCE.  297 

made,  and  the  day  of  the  trial.  But  when  he  delays  the  prosecution  of  his 
claim  beyond  the  period  which  may  be  considered  reasonable  for  the  purpose  of 
endeavoring  to  make  an  amicable  arrangement,  he  must  be  considered  as  assent- 
ing to  the  delay,  and  ought  to  participate  in  the  hazard  of  it.  In  such  a  case  we 
are  inclined  to  think  the  rule  of  damages  should  be  the  value  of  the  article  at  the 
commencement  of  the  suit. 

"Whether  this  rule  of  damages  would  be  applicable  to  contracts  for  the  sale 
and  delivery  of  individual  articles,  purchased  for  the  use  and  accommodation  of 
the  vendee,  and  not  for  the  purpose  of  sale,  we  express  no  opinion.  The  case  at 
bar  is  evidently  a  contract  for  the  purpose  of  trade  and  commerce,  and  to  that 
class  of  cases  we  wish  to  be  understood  as  at  present  confining  our  opinion. 

"  The  consideration  in  this  case  is  acknowledged  to  have  been  received  at  the 
time  of  making  the  contract.  Whether  it  was  in  money  or  in  anything  else,  is 
not,  perhaps,  material ;  but  the  presumption  of  law  is,  that  it  was  in  money." 

And  in  Texas,  also,  upon  much  consideration,  the  rule  has 
been  declared  that  on  breach  of  a  contract  to  deliver  chattels, 
where  the  purchase  money  has  been  paid,  the  highest  price  at 
any  time  between  the  time  appointed  for  delivery  and  the  day 
of  trial,  and  interest  from  the  time  appointed  for  delivery,  is  the 
true  measure  of  damages.* 

It  will  be  seen  here  that  an  expeditious  prosecution  of  the 
demand  is  insisted  upon  as  indispensable  to  successful  claim  for 
the  highest  price  prior  to  the  verdict ;  and  this  must  certainly 
be  so,  for  it  would  never  be  tolerated  that  the  plaintiff  should 
derive  benefit  from  delays  of  litigation  caused  by  himself  ^ 

In  a  still  later  case,t  the  principle  "  that  where  the  vendor  is 
in  default  for  not  delivering  goods  or  chattels  in  pursuance  of 
the  contract  of  sale,  and  no  money  has  been  advanced  hy  the  vendee, 
the  true  measure  of  damages  is  the  difference  between  the  con- 
tract price  and  the  value  at  the  time  the  article  should  have 
been  delivered,"  was  affirmed ;  and  again,  it  has  been  since 
held  X  "  that  the  rule  of  damages  on  the  breach  of  an  agree- 
ment to  sell  goods,  is  the  market  price  on  the  day  ap- 
pointed for  the  delivery,  less  the  contract  price  tvhere  the  [266] 
latter  is  not  jmid."^ 

But  the  authority  of  these  cases  has  been  much  shaken  by  a 
recent  adjudication  in  the  same  State.     In  an  action  of  replevin 

*  Randon  v.  Barton,  4  Tex.  289 ;  Calvit  v.  §  This    case    was    reversed    in    error,    26 

M'Fadden,  13  Tex.  .324.  Wend.  341,  on  a  question  {^rowing  out  of  the 

t  Dey  V.  Dox,  9  Wend.  129.  Statute  of  Frauds;  but  the  rule  of  damages 

I  Davis  V.   Shields,  24   Wend.  322 ;  Beals  was  not  touched. 
V.  Terry,  2  Sandf.  S.  C.  127,  S.  P. 

1  Such  is  the  rule  in  Iowa,  though  whether  the  time  should  be  estimated  to  the  rendition  of 
the  verdict  or  the  bringing  of  the  suit  is  left  tmdetermined.  Davenport  v.  Wells,  3  Iowa,  242 ; 
Cannon  v.  Folsom,  2  Iowa,  101. 


298  SALES    OF    TERSONAL    PROPERTY.  [ciI.    X. 

af^ainst  the  sheriff  for  certain  barrels  of  flonr  levied  on  by  him, 
the  plaintiff  failed  to  prove  his  title ;  and  the  defendant  on  the 
trial  elected  to  waive  a  return,  and  to  take  judgment  for  the 
value  of  the  property.  The  value  at  the  time  of  the  sheriff's 
levy  was  f  4.56  per  barrel ;  at  the  time  of  the  replevin,  it  was 
$4.43  ;  and  at  the  time  of  the  defendant's  election,  it  had  risen 
to  $6.25.  The  referee  before  whom  the  cause  was  tried  took 
the  last  value,  and  gave  interest  thereon.  On  a  review  of  this 
decision,  the  Superior  Court  of  New  York  went  into  an  elabo- 
rate examination  of  all  the  cases  on  the  subject,  and  came  to 
the  following  conclusions.  They  held,  in  the  first  place,  that 
the  rule  for  ascertaining  the  sum  to  be  received  by  the  injured 
party  in  all  cases  where  personal  property  is  wrongfully  taken 
or  detained,  whether  by  force,  fraud,  or  process  of  law  (leaving 
out  of  view  the  exceptional  cases  in  which  exemplary  damages 
are  given),  ought  to  be  the  same  without  reference  to  the  form 
of  action  ;  and  that  it  was,  that  the  owner  to  whom  compensaiioii  is 
due  must  be  fully  indemnified,  and  the  tvrong-doer  not  permitted  to 
derive  any  benefit  or  advantage  from  his  wrongful  act ;  and  that  this 
just  indemnity  will  be  arrived  at  by  adding  to  the  value  of  the  property, 
at  the  time  the  oivner  is  dispossessed  of  it,  the  damages  tvhich  he  is 
proved  to  have  sustained  from  the  loss  of  its  possession,  and  every 
increase  of  value  ivhich  the  torong-doer  has  obtained  or  has  it  in  his 
power  to  obtain ;  and  that  the  highest  price  at  which  the  property 
could  have  been  sold  at  any  time  after  the  cause  of  action 
accrued,  cannot  be  considered  the  measure  of  damages,  nnless 
the  evidence  shows  that  such  higher  price  could  have  been  obtained  by  the 
true  oivner  or  has  been  in  fact  received  by  the  zvrong-doer.  And  in 
the  principal  case,  judgment  was  given  according  to  the  price 
of  the  flour  when  replevied.*^ 

In  the  other  States  of  the  Union,  the  decisions  are 

[267]  not  harmonious.     In  regard  to  the  general  principles, 

undoubtedly  there  is  no  variance  ;  but  whether  the  j^ay- 

ment  of  the  price  alters  the  rule  and  gives  the  plaintiff  a  right 

to  greater  damages,  does  not  appear  clear. 

*  Suydam  v.  Jenkins,  3  Sandford,  S.  C.  614,  per  Duer,  J.  The  opinion  is  very  able, 
and  deserves  careful  attention. 

1  Under  a  contract  to  purchase  a  certain  quality  of  merchandise  within  a  specitied  period,  if 
the  purchaser  refuses  to  perform  it  within  the  time  fixed,  the  seller  can  either  hokl  the  goods 
subject  to  his  oi'der  and  sue  him  at  once  for  the  contract  price,  or  sell  them,  after  notice  to 
him,  for  the  best  price  which  can  be  obtained  ;  and  in  adopting  the  latter  course  the  vendor 
need  not  sell  immediately,  but  may  wait  as  long  as  he  chooses  to  take  the  risk  of  tlie  pur- 
chaser's solvency,  holding  them  meanwhile  subject  to  the  purchaser's  order  on  his  making 
payment.  After  such  a  sale,  the  measure  of  damages  on  an  action  against  the  ])urchaser  for 
breach  of  contract  is  the  difference  between  the  best  price  that  could  be  obtained  at  the  sale 
and  the  contract  price,  with  interest.  The  market  price  on  the  latest  day  fixed  by  the  contract 
is  immaterial.    Dustan  v.  McAndrew,  10  Bosw.  130. 


CH.    X.]  PRICE    PAID    IN    ADVANCE.  299 

The  question  has  been  considered  but  not  determined,  by  the 
Supreme  Court  of  the  United  States.  Where  a  contract  was 
made*  to  redeliver  to  the  plaintifts  flour  left  with  the  defend- 
ants and  not  paid  for,  the  phiintiff  claimed  damages  only  at  the 
rate  of  the  price  of  flour  on  the  day  fixed  for  delivery ;  and 
though  the  case  went  up  to  Washington,  nothing  was  decided. 

In  an  action  brought  in  Louisiana,!  by  petition  or  libel,  the 
forms  of  action  of  the  English  law  being  there  unknown,  on  a 
contract  for  the  delivery  of  cotton  at  10  cents  per  pound,  on  or 
before  the  15th  day  of  February,  when  the  article  was  12  cents 
per  pound,  it  appeared  that  it  had  risen  to  30  cents,  before  the 
suit  was  brought ;  the  plaintiffs  insisted  that  they  were  entitled 
to  the  highest  market  price  up  to  the  rendition  of  the  judg- 
ment. But  the  unanimous  opinion  of  the  court  was,  "  that  the 
price  of  the  article  at  the  time  it  was  to  be  delivered,  was  the 
measure  of  damages."  $  Marshall,  C.  J.,  said,  "  For  myself 
only,  I  can  say  that  I  should  not  think  the  rule  Avould  apply  to 
a  case  ichere  advances  of  money  had  been  made  by  the  purchaser 
under  the  contract.  But  I  am  not  aware  what  would  be  the 
opinion  of  the  court  in  such  a  case." 

This  distinction  between  contracts  executory  and  partially 
executed,  does  not  appear  to  be  recognized  in  Massachusetts. § 
An  action  was  brought  against  a  corporation  which  had  in- 
creased its  capital,  b}''  an  original  subscriber,  for  not  permitting 
him  to  subscribe  for  new  stock.  The  point  decided  by  both  the 
judges  who  delivered  opinions  was,  that,  the  chattel  not  being 
paid  for,  the  price  at  the  time  of  delivery  was  the  rule  of  dam- 
ages. The  language,  however,  of  Sedgwick,  J.,  is  very  broad ; 
he  says,  "  The  general  rule  invariably  adhered  to  here  is,  that 
the  price  of  stock  at  the  time  it  should  be  transferred  or 
delivered,  shall  be  that  by  which  the  damages  shall  be  [268] 
assessed ;  and  the  same  rule  applies  to  other  personal 
property."  But  it  will  be  noticed  that  the  price  of  the  stock 
had  in  this  case  only  been  tendered."  || 

In  Pennsylvania,  in  the  Circuit  Court  of  the  United  States, 
in  an  action  for  not  delivering  teas  of  the  price  fixed  by  the 


*  Douglass  et  al.  v.  McAllister,  3   Cranch,  preme   Court   declares    the    general    rule    of 

298.  damages  on  all  contracts  to  deliver  goods  on 

t  Shepherd  v.  Hampton,  3  Wheat.  200.  demand,  to  be  the  value  of  the  property  at 

t  And  this  appears  to  have  been  adhered  to  the  time  of  the  demand  ;  and  the  court  also 

in  that  State.     Arrowsmith  u.  Gordon,  3  La.  repeats  the  assertion,  the  precise   correctness 

Ann.  R.  105.  of  which  we  have  heretofore  examined,  that 

§  Opinion  of   Sewell,  J.,  in  Gray  v.   The  on  all   contracts   and   obligations,   the   party 

President  of  the  Portland  Bank,  3  Mass.  R.  injured  by  the  breach  or  non-i)erformance,  is 

364.  entitled  to  a  fiiU  indemnity.     Swift  v.  Barnes, 

II  In  a  later  case  in  Massachusetts,  the  Su-  16  Pick.  194. 


300  SALES  OF  PERSONAL  PROPERTY.  [ciL  X. 

contract,*  Mr.  J.  Washington  laid  down  the  general  rule  as  we 
have  found  it  above,  without  adverting  to  the  distinction  which 
we  are  now  considering. 

In  Connecticut,  it  has  been  held  that  where  the  price  is  paid 
in  advance,  the  advance  at  all  events  can  be  recovered  without 
any  investigation  into  the  state  of  the  market.  In  a  case  in  that 
State  suit  was  brought  on  an  agreement  to  deliver  flour.  The 
plaintiff  paid  part  of  the  price  in  advance.  At  the  time  fixed 
for  the  performance,  flour  had  fallen  in  price,  and  it  was  held 
that  he  was  entitled  to  recover  his  advance  with  interest.  It 
was  admitted  that  where  one  contracts  to  deliver  any  article 
other  than  money,  and  fails  to  do  it,  the  rule  of  damages  is  the 
value  of  the  article  at  the  time  and  place  of  delivery,  with 
interest  for  the  delay,  because  it  is  supposed  that  the  party  will 
have  supplied  himself  elsewhere  with  the  article  at  that  price  ; 
but  it  was  held  that  this  reasoning  did  not  apply  to  a  case  where 
the  plaintiff"  had  violated  his  contract  and  retained  the  plain- 
tiff''s  money  without  consideration.!  In  a  case  in  the  same 
State,  on  an  agreement  by  the  defendant  to  give  a  deed  of 
certain  land  in  consideration  of  the  transfer  to  him  of  a  farm 
worth  $2,000,  the  defendant  insisted  that  the  plaintiff"  could 
only  recover  the  value  of  the  farm  conveyed  by  him ;  and  it 
was  so  held  at  the  trial.  But  the  rule  that  the  value  of  the 
article  at  the  time  and  place  of  delivery,  and  interest  for  delay, 

furnished  the  measure  of  damages,  was  again  declared  by 
[269]  the   court.     It  was  said,  "  that  the  consideration  of  a  con- 

tract  is  never  the  rule  of  estimatino;  the  damagres  for  the 
breach  of  an  express  agreement ; "  and  a  new  trial  was  granted.^ 
The  whole  subject  has,  however,  recently  been  reviewed  in  that 
State,  and  the  rule  as  established  in  England  has  been  finally 
adopted,§  the  court  saying,  "  that  it  was  founded  upon  princi- 
ples of  natural  justice." 

In  Pennsylvania,  any  difference  resulting  from  the  payment 
of  the  price  has  been  distinctly  rejected.  Woolston  bought  of 
Bosler  13,000  morus  multicaulis,  and  paid  the  price ;  the  trees 

*  Gilpin  V.  Consequa,  Peters'  C.  C.  E,.  85.  cases  has  arisen  from  the  specific  relief  which 

t  Bush  V.   Canfield,  2  Conn.  R.  485.     See  chancery  has  been  in  the  habit  of  givintj,  and 

an    able    dissenting    opinion   by  Hosmer,   J.  which  courts  of  law,  not  universally,  but  in 

This    case    presents,    in    fact,    the    question  most  instances,   have    in   substance   thought 

whether  the  loss  by  the  depreciation  of   the  proper  to  pursue.     Whenever  a  case  on  this 

article  should  fall  on  the  vendor  or  purchaser ;  subject  occurs,  I  shall  be  desirous  of  putting 

the  court,  in  awarding  to  the  plaintiff  his  ad-  an  end  to  this  exception  without   cause,  by 

vance  and  interest,  really  extricated  him  from  the  establishment  of  perfect  uniformity,  as  no 

a  losing  bargain.  just  reason  can  be  assigned  for  any  discrim- 

t  "  The  reason  of  the  rule,"  said  Hosmer,  ination."     Wells   v.  Abernethy,  5    Conn.  R. 

J.,  "  is  so  complete  and  obvious,  that  it  has  222. 

been   universally   embraced,   except   in    cases  §  West  v.  Pritchard,  19  Conu.  R.  212. 
of  stock  contracts ;  and  the  anomaly  in  such 


CII.    X.]  PRICE    PAID    IN    ADVANCE.  301 

were  not  delivered.  Smethurst,  the  defendant,  gave  a  guaranty 
for  the  performance  by  Bosler  of  his  contract  to  deliver  the  trees 
on  five  days'  notice.  Smethurst  being  proved  liable,  the  defend- 
ant insisted  that  the  measure  of  damages  was  the  value  of 
morus  multicaulis  at  the  time  of  the  breach  of  contract,  or  about 
that  time.  But  the  judge  who  tried  the  cause  said  that  the 
sum  paid  by  Woolston,  the  plaintiff,  to  Bosler,  furnished  the  rule. 
On  writ  of  error,  the  Supreme  Court  of  Pennsylvania  held  the 
charge  wrong.  After  noting  the  case  of  Shepherd  v.  Hampton, 
above  cited,  the  court  said,  "  It  is  evident  that  C.  J.  Marshall 
failed  to  advert  to  the  difference  between  a  suit  on  the  contract 
itself,  and  a  suit  grounded  on  the  rescission  of  the  contract." 
In  the  latter  case,  the  court  said,  "  The  money  paid  could  be 
recovered  ;  but  in  the  former,  the  value  must  be  always  the 
measure  of  damages."  *  ^ 

*  Smethurst  o.  Woolston,  5  Watts  &  Serg.  contract ;  but  I  am  not  aware  what  would  be 

R.   106.     The  language  of  Rogers,  J.,  is  as  the   opinion   of   the   court    in   such   a   case.' 

follows :  the  distinctions  are  very  acute.  Taking  the  remarks  of   the  chief  justice   in 

"  The  value  of  the  article  at  or  about  the  the  broadest  sense,  and  supposing  them  to  be 
time  it  is  to  be  delivei-ed,  is  the  measure  of  directly  applicable  to  the  case  in  hand  (of 
damages  in  a  suit  by  the  vendee  against  the  which  there  is  some  room  to  doubt),  it  is  very 
vendor,  for  a  breach  of  the  contract.  This  evident  that  he  failed  to  advert  to  the  diff'er- 
priiicijile  is  ruled  in  Meason  v.  Philips  (Addi-  ence  between  a  suit  on  the  contract  itself,  and 
son,  34G) ;  is  recognized  in  Edgar  u.  Boies  (11  a  suit  grounded  on  the  rescission  of  the  con- 
S.  &  K.  45),  and  is  in  effect  affirmed  by  all  tract.  But  this  distinction,  which  pervades 
the  authorities  cited.  Indeed,  the  general  all  the  authorities,  governs  the  whole  case; 
principle  is  not  denied,  but  it  is  contended  for  the  purchaser  may  declare  specially  for 
that  this  is  an  exception ;  that  the  rule  holds  the  breach  of  the  contract ;  or  simjily  for 
good  only  when  the  purchase  money  has  not  money  had  and  received,  to  recover  back  the 
been  paid,  l)ut  that  when  the  purchase  money  deposit,  if  any  be  made,  or  the  purchase 
has  been  advanced  by  the  vendee,  the  meas-  money  if  it  be  paid;  or  he  may  join  both 
lire  of  damages  is  the  sum  paid  or  the  value  causes  of  action  in  the  same  declaration. 
of  the  article  which  forms  the  consideration  And  when  this  is  done,  it  is  granted  that 
of  the  contract.  But,  for  this  distinction  no  under  the  money  count,  the  money  advanced 
authority  has  been  cited  except  a  dictum  may  be  recovered  back,  or  where  a  specific 
(doubtless  entitled  to  great  respect)  of  Chief  article  has  been  given  in  satisfaction,  the  pur- 
Justice  Marshall,  in  Shepherd  v.  Hampton,  3  chaser  may  when  default  is  made,  elect  to 
Wheat.  200.  After  alHrming  the  general  consider  the  contract  at  an  end,  and  recover 
principle,  he  adds,  '  For  myself  only,  I  can  the  article  itself,  or  its  value,  from  the  vendor, 
say  that  I  should  not  think  the  rule  would  But  on  the  other  hand,  where  tiie  purchaser 
apply  to  a  case  where  advances  of  money  declares  specially  for  breach  of  the  contract, 
'had   been  made   by    the    purchaser   under   a  and  thereby  affirms  it,  the  only  rule  of  dam- 

1  But  compare  the  case  of  The  Bank  of  Montgomery  v.  Reeve,  26  Penn.  St.  143,  where  it 
is  held  that  where  bank  stock  has  been  wrongfully  withheld  from  a  party  entitled  to  it,  "  the 
measure  of  damages,  if  the  consideration  for  the  stock  has  been  paid,  is  the  highest  market 
value  between  the  breach  and  the  trial,  together  with  the  bonus  and  dividends  which  have  been 
received  in  the  mean  time  ;  but  if  the  consideration  has  not  been  paid,  the  plaintiff  should  be 
allowed  the  difference  between  it  and  the  value  of  the  stock,  together  with  the  difference 
between  the  interest  on  the  consideration  and  the  dividends  on  the  stock." 

The  modification  of  the  general  rule  in  case  of  payment  in  advance  is  sanctioned  in  Indi- 
ana, in  regard  to  commercial  transactions.  In  the  case  of  Kent  v.  Gintcr,  23  Ind.  1,  the  court 
after  stating  that  the  ordinary  rule  for  measuring  damages  in  suits  by  the  vendee  against  the 
vendor  is  the  value  of  the  property  at  the  time  and  place  of  delivery,  declare  that  one  excep- 
tion is  well  established  in  the  case  of  stocks,  and  approve  also  those  authovities  wiiich  nuike  a 
second  exception  in  the  case  of  the  payment  in  advance  for  an  article  which  is  one  of  a  class 
or  quantity.  In  this  case  the  vendee  has  two  remedies  :  one  to  treat  the  contract  as  re- 
scinded, and  sue  to  recover  the  money  paid  with  interest;  the  other,  to  sue  for  damages  which 
include,  besides  the  value  of  the  article  at  the  time  of  the  purchase,  the  benefit  of  its  rise; 
whether  this  second  exception  extends  to  the  case  of  a  specific  article,  the  title  to  which  passed 
by  the  purchase,  so  that  trover  or  replevin  could  be  maintained  for  it  by  the  vendee,  the  court 
leaves  undecided. 


302 


SALES  OF  PERSONAL  PROPERTY. 


[CH. 


X. 


Conflict  of  Decision.  —  It  may  be  proper  to  notice 
[270]  how  complete  is  the  contrariety  of  these  decisions.  One 
may  well  be  tempted  to  exclaim  with  Vinnius,  Qiicadio 
hctic  valde  jmylcxa  est,  nidhisque  est  hodie,  vel  judex,  vel 
[271]  patronus,  vel  jurisconsidtus,  qui  non  hwrcai,  mancatqiie  suspenses 
qmiies,  cum  condenmaiio  facienda  in  rei  'petitcv  wsiimalioncm,  qiiccritur 
ad  quod  tempus  cestimatio  rcferri  delate  In  the  courts  of  England 
and  Connecticut,  it  would  seem  that  if  the  price  be  paid  in  ad- 
vance, the  vendee  is  entitled  to  the  highest  value  up  to  the 
time  of  trial,  and  the  right  to  rescind  is  denied.  But  the 
judges  of  these  tribunals  do  not  appear  to  agree  upon  the  ques- 
tion which  presents  itself  where  the  article  falls  in  value  after 
the  price  is  paid. 

In  New  York,  the  subject  seems  to  be  thrown  into  confusion 
by  the  introduction  of  a  new  qualification  ;  while  in  Pennsylva- 
nia the  right  to  rescind  is  maintained,  and  the  vendee,  even 
where  he  has  paid  the  price,  is  only  allowed  to  recover  accord- 
ing to  the  value  of  the  article,  unless  under  the  count  for  money 
had  and  received.     In  this  perplexing  conflict  of  opinion,  I  am 


ages  is  the  value  of  the  article,  at  or  about  the 
time  it  is  to  be  delivered. 

"  Where  the  vendor  fails  to  deliver  the 
article  bought,  the  purchaser  may  elect  to 
rescind  the  contract  and  recover  back  the 
money  paid,  or  he  may  bring  suit  on  the 
agreement,  and  recover  the  value  at  or  about 
the  time  it  ought  to  be  delivei'ed.  And  this 
is  a  just  rule,  for  if  it  has  risen  in  value  he 
has  the  advantage  of  the  increased  price ;  if 
it  has  decreased,  \yhy  should  he,  when  he 
adheres  to  the  contract,  recover  moi-e  from 
the  vendor  than  for  the  injury  he  has  sus- 
tained by  the  non-performance  of  the  agree- 
ment '?  And  the  vendee  has  the  less  reason  to 
complain,  because  he  may,  as  before  stated, 
rescind  the  bargain  and  place  himself  in  the 
same  situation  as  before  it  was  made.  It  is 
said  that  the  vendor  is,  in  the  case  supposed, 
in  default,  and  this  is  true  ;  but  where  there  is 
any  circumstance  of  aggravation,  which  is  rarely 
the  case,  the  jury  may  do  justice  by  a  liberal 
estimate  of  the  value  of  the  goods.  It  has  been 
suggested  that  the  contract,  on  failure  of  the 
vendor  to  perform  his  part  of  it,  is  ipso  facto 
rescinded  ;  but  this  is  a  novel  idea,  for  it  can 
be  rescinded  only  with  the  assent  of  the  ven- 
dee, who  may  in  a  given  case  elect  to  consider 
the  agreement  at  an  end.  And  in  the  latter 
case,  that  is,  where  the  purchaser  agrees  that 
the  contract  be  rescinded,  the  remedy  against 
the  guarantor  is  gone;  tor  it  is  only  on  the 
footing  of  the  subsistence  of  the  contract 
between  the  vendor  and  vendee,  which  he 
guai'antees,  that  he  is  liable.  This  is  so  plain 
as  not  to  need  the  aid  of  argument.  It  is 
very  true  that  a  deposit,  or  even  the  interest 
on  a  deposit,  may,  in  certain  cases,  be  recov- 


ered on  a  special  count  against  the  vendor. 
But  these  cases  form  rather  the  exception 
than  the  rule.  Usually  the  damages  sus- 
tained are  much  less  than  the  dejiosit;  and 
besides,  this  is  necessary,  for  otherwise  it 
could  not  be  recovered  at  all  against  the 
vendor,  who  has  not  received  the  money,  the 
deposit  being  in  the  hands  of  the  auctioneer, 
and  he  alone  is  liable  for  money  had  and 
received.  Besides,  the  cases  cited  are  on 
sales  of  lands  by  auctioneers,  and  the  same 
rules  cannot  hold  as  on  the  sale  of  chattels ; 
for  lands,  unlike  stocks,  etc.,  have  no  market 
value.  There  is  nothing  in  the  suggestion 
that  the  agreement  takes  the  case  out  of  the 
general  rule.  The  suit  is  brought  for  breach 
of  an  agreement,  the  performance  of  which 
the  defendant  agreed  to  guarantee.  It  is, 
therefore,  from  necessity,  a  suit  in  affirmance 
of  the  contract.  The  defendant  agrees,  in* 
effect,  that  if  the  vendor  fails  to  perform  the 
agreement,  he  will  pay  the  value  of  the  trees 
at  the  time  they  ought  to  have  been  deliy- 
ered." 

AVhen  we  come  to  the  subject  of  warranties, 
we  shall  see  that  the  right  to  rescind,  here 
declared,  is  more  than  doubtful ;  nor  can  it 
be  considered  correct  to  leave  a  question  of 
this  kind  to  a  jury  with  any  instructions  so 
vague  or  dangerous,  as  that  they  are  at  liberty 
to  make  "  a  liberal  estimate  "  of  the  value  of 
the  property. 

It  will  be  perceived,  also,  that  this  decision 
is  directly  opposed  to  that  above  cited  from 
Connecticut,  throwing  the  loss  of  the  specula- 
tion on  the  plaintiff. 

*  Vinnius,  Selectas  Questioncs,  lib.  1,  ch. 
39. 


CH.    X.]  PRICE   PAID    IN    ADVANCE.  303 

admonislied  to  refrain  from  any  dogmatical  declaration  of  the 
existing  rule;  and  this  especially  as  it  cannot  be  denied  that 
some  doubt  has  been  thrown  on  the  entire  subject  by  a  late 
decision  of  the  Court  of  Exchequer  in  England. 

In  a  recent  case  in  that  court,  the  defendants,  in  1833, 
agreed  to  sell  and  deliver  on  board  the  plaintiff's  vessel  a  cer- 
tain quantity  of  Odessa  linseed,  at  that  place,  at  30*.  per 
quarter.  The  plaintiff's  vessel  arrived  at  Odessa,  and  they  paid 
the  defendants  £1,575  in  October,  1833,  being  a  moiety  of  the 
purchase-money  of  the  expected  cargo.  The  defendants  gave 
notice  that  they  could  not  comply  with  the  contract.  In  Feb- 
ruary, 1834,  when  the  cargo  would  have  arrived  in  England  if 
it  had  been  delivered  to  the  plaintiffs  at  Odessa,  the  'pnce  was 
from  47^.  to  50^.  per  quarter ;  at  the  time  of  trial  it  would  have 
been  about  565.  The  defendants  paid  into  court,  in  September, 
1835,  £2,072,  which  was  at  the  rate  of  47^.,  and  which  w^as  paid 
over  to  the  plaintiffs,  who  contended  that  as  they  had  paid  a  por- 
tion of  the  purchase-money  and  lain  out  of  it  for  a  long 
time,  they  were  entitled  to  damages  according  to  the  [272] 
price  at  which  the  seed  was  selling  at  the  time  of  the 
trial.  Lord  Abinger,  at  the  trial,  charged,  "  That  in  his  opinion 
the  plaintiffs  were  not  entitled  to  treat  this  as  a  case  resem- 
bling contracts  for  the  replacing  of  stock  where  the  damages 
are  estimated  at  the  price  of  the  funds,  and  they  were  not 
entitled  to  damages  according  to  the  then  price  of  the  seed, 
and  that  taking  the  price  at  the  time  the  cargo  would  arrive, 
it  appeared  to  him  that  enough  had  been  paid  into  court;  but 
with  these  ol)servations  he  left  the  case  to  the  jury  for  their 
deliberation,"  who  designing,  as  Lord  Abinger  remarked,  to 
give  no  more  than  the  money  advanced  and  interest  on  it,  found  a 
verdict  for  the  defendants.  A  motion  was  made  for  a  new  trial, 
on  the  ground  of  misdirection  ;  but  the  rule  was  discharged. 

Lord  Abinger,  C.  B.,  said,  "  The  plaintiffs  did  not  prove  that  they  wanted  this 
seed  for  any  particular  purpof^e,  or  that  they  sustained  any  peculiar  injury  from 
its  non-delivery.  I  told  the  jury  that  neither  the  witnesses  nor  the  plaintiffs  had 
pointed  out  any  precise  line  which  should  mark  the  proper  estimate  of  the  dam- 
ages ;  for  they  had  not  stated  what  they  had  intended  to  do  with  the  seed,  whetlier 
to  crush  it  or  to  sell  it.  The  plaintiffs,  however,  insisted  that  they  were  entitled 
to  the  profits  which  they  might  possibly  have  made  upon  it,  if  it  had  been  de- 
livered. The  jury  appeared  to  me  to  wish  to  give  no  more  than  the  money  ad- 
vanced and  interest  upon  it.  I  am  not  aware  of  any  rule  for  estimating  damages 
for  speculative  profits,  besides  taking  the  interest  on  the  money  advanced.  It  was 
not  proved  that  the  plaintiffs  could  have  made  more  than  5  fer  cent,  on  that 
money,  or  that  they  had  not  credit  at  their  bankers'  to  that  extent,  and  thereby 


304  SALES  OF  PERSONAL  PROPERTY.  [CH.  X. 

had  sustained  any  peculiar  inconvenience.  The  money  hud  been  paid  into  the 
court,  and  the  plaiatiffd  received  it  as  soon  as  the  practice  of  the  court  allovsred 
them  so  to  do.  I  felt  a  dilhculty  as  to  how  the  damages  ought  to  be  computed  ; 
but  one  of  the  witnesses  gave  something  like  a  rule,  which  I  pointed  out  to  the 
jury.  He  said  that  Odessa  linseed  was  about  the  same  quality  as  Sicilian 
linseed,  though  it  usually  sold  at  a  somewhat  lower  rate.  The  ship  arrived  in 
England  in  March.  He  stated  that  at  that  time  Sicilian  linseed  was  well  sold  at 
50s.,  and  that  he  himself  iiad  furnished  good  seed  at  that  price ;  and  deducting  2s. 
for  the  difference  in  value,  the  fair  price  of  the  Odessa  seed  was  48s. ;  and  allow- 
ing a  discount,  the  price  would  have  been  about  that  which  the  defendants  had 
paid  into  court.  It  is  to  be  remarked  that  by  the  terms  of  the  contract,  supposing 
the  cargo  to  have  been  shipped  in  pursuance  of  it,  the  plaintiffs  would  have  been 
obUged  to  pay  the  residue  of  the  purchase-money  at  that  time.  I  did  not,  how- 
ever, prescribe  any  line  to  the  jury  upon  which  they  ought  to  proceed  ;  but  I 
told  them  they  ought  not  to  give  speculative  or  vindictive  damages." 

Alderson,  B.,  said,  "  The  only  question  in  the  case  was  as  to  the  amount  of 
damages.  The  contract  was  to  deliver  a  certain  quantity  of  linseed  at  a 
["2731  certain  time,  namely,  on  the  arrival  of  the  ship  in  London.  Previously 
to  that  period  a  notice  was  given  by  the  defendant  that  he  was  unable  to 
perform  his  contract.  It  appears  that  the  price  at  that  time  was  not  the  proper 
criterion  for  estimating  the  damages ;  for,  as  the  plaintiffs  had  already  parted  with 
their  money,  they  were  not  then  in  a  situation  to  purchase  other  seed.  The  more 
correct  criterion  is  the  price  at  the  time  when  the  cargo  would  have  arrived  in 
due  course,  according  to  the  contract ;  when,  if  it  had  been  delivered,  the  plaintiffs 
would  have  been  enabled  to  resell  it.  Another  criterion  is  to  consider  the  loss 
of  the  gain  which  the  party  would  have  made  if  the  contract  had  been  complied 
with.  In  the  present  case,  the  loss  which  the  plaintiffs  have  sustained,  arises 
from  their  having  been  kept  out  of  their  money.  That  is  a  matter  to  be  calcu- 
lated by  tlie  interest  of  the  money  up  to  the  time  when,  by  the  course  of  practice, 
the  money  could  have  been  obtained  out  of  court.  It  appears  from  the  report  of 
the  trial  that  there  were  no  circumstances  submitted  to  the  jury  to  show  that  the 
plaintiffs  had  sustained  any  special  damage.  The  verdict  is,  therefore,  in  my 
opinion  right."  * 

No  Just  Distinction  between  Stock  and  Merchandise.  —  There 
appears  no  solid  reason  for  making  any  difference  between 
stock  and  any  other  vendible  commodity.  Where  stock  is 
loaned,  or  the  price  of  the  article  paid  for,  in  either  case  the 
party  entitled  to  the  delivery  parts  with  his  property  on  the 
faith  of  the  contract,  and  in  either  case  is  prevented  from  using 
it,  up  to  the  time  of  trial.  The  question  is,  whether,  in  either 
case,  the  law  should  act  on  the  assumption  that  the  plaintiff 
would  have  retained  the  property  if  the  contract  had  been  com- 
plied with,  till  the  period  of  the  highest  value,  and  have  realized 

*  Startup  V.  Cortazzi,  2  Cr.  Mces.  &  Roscocj  165. 


CII.    X.]  PRICE   PAID    IN    ADVANCE.  305 

that  price,  and  thus  give  damages  which  are  purely  conjectural. 
It  will  be  noticed  that  in  the  case  of  Clark  v.  Pinney,*  it  was 
intimated  ])y  the  Supreme  Court  of  New  York,  that  the  rule 
ought  to  be  limited  to  the  case  of  articles  intended  for  sale ; 
and  that  in  Startup  v.  Cortazzif  it  was  suggested  that  the  plain- 
tiffs had  given  no  proof  of  the  purpose  for  which  the  article  was 
intended ;  the  niceness  of  the  first  distinction,  the  difficulty  of 
furnishing  satisfoctory  proof  under  the  second  head,  and  the 
general  policy  of  the  law  which  denies  conjectural  relief,  seem 
to  me  strongly  to  point  to  the  period  of  breach  as  the  true  time, 
in  all  cases,  of  estimating  the  damages,  unless  it  be  shown  that 
the  article  was  to  be  delivered  for  some  specific  object 
known  to  both  parties  at  the  time,  and  that  thus  a  loss  [274] 
within  the  contemplation  of  both  parties  has  been  sus- 
tained. The  fact  of  payment  in  advance  throws  no  light  on  the 
injury  sustained  by  the  purchaser;  nor  does  it  at  all  increase 
the  probability  that  he  would  have  retained  the  article  till  the 
rise  of  price.  The  value  of  the  article  at  the  time  of  breach, 
with  interest  for  delay,  and  subject  to  the  above  exception, 
seems  to  me  as  near  an  approach  to  the  actual  loss  sustained  as 
can  be  effected,  without  embarking  upon  a  vague  search  after 
facts  impossible,  in  most  cases,  to  be  proved  with  any  degree  of 
satisfaction.^  ^ 

*  Ante,  279.  time  of  trial,  is  the  rule  of  damages."  To 
t  Supra.  which  the  chancellor,  in  his  sixth  edition,  re- 
J  The  opinion  expressed  by  Mr.  Chancellor  plied  as  follows  :  "  The  learned  author  is  mis- 
Kent  is  also  well  worthy  of  notice.  The  text  taken  in  supposing  I  had  overlooked  that  dis- 
of  the  original  edition  of  this  work  contained  tinction.  These  Commentaries  are  not  calcu- 
the  following  passage :  "  Chancellor  Kent,  in  lated  to  embody  all  the  nice  or  arbitrary  or 
his  Commentaries,  vol.  ii.  p.  480,  lect.  xxxix.  fanciful  distinctions  that  are  to  be  met  with  in 
says,  *  The  general  rule  is  well  settled,  that  in  the  Reports.  I  do  not  regard  the  distinction 
a  suit  by  vendee,  for  a  breach  of  contract  on  alluded  to  as  well  founded  or  supported.  It  is 
the  part  of  the  vendor,  for  not  delivering  an  disregarded  or  rejected  by  some  of  the  best  au- 
article  sold,  the  measure  of  damages  is  the  thorities  cited.  The  true  rule  of  damage  is 
price  of  the  article  at  the  time  of  the  breach.'  the  value  of  the  article  at  the  time  of  the 
The  learned  chancellor  appears  here  to  over-  breach,  or  when  it  should  have  been  delivered, 
look  the  distinction  resulting,  as  we  have  seen,  Mr.  Sedgwick  seems,  himself,  to  come  to  that 
fronj  the  payment  of  the  price  beforehand,  conclusion  amid  the  contrariety  of  opinion  and 
which  runs  through  these  cases,  and  which  is  cases  which  he  cites."  2  Kent's  Com.  480, 
entirely  analogous  to  the  rule  in  trover :  that  lect.  xxxix.  See  Owen  v.  Routb,  14  C.  13. 
the  value  of  the  chattel,  not  at  the  moment  of  (5  J.  Scott)  327 ;  ante  262,  note, 
the  conversion,  but  its  highest  value  up  to  the 

1  The  rule  in  Vermont  is  thus  stated  by  Redlield,  C.  J.,  in  delivering  the  opinion  of  the  Su- 
preme Court  of  that  State,  in  the  case  of  the  Copper  Co.  v.  Copper  Mining  Co.  33  Vt.  92  : 
"  The  only  general  damages  which  the  vendee  of  personal  property  is  entitled  to  recover  for 
failure  to  deliver  the  articles  according  to  the  contract,  ichether  the  price  he  paid  or  not,  is  the  dif- 
ference between  the  contract  price  and  the  market  price  of  the  article  at  tlie  stipulated  time 
and  place  of  delivery,  when  the  price  has  advanced,  together  with  the  money  i^aid  towards  the 
price."  And  in  the  case  of  Hill  v.  Smith,  32  Vermont,  433,  the  same  learited  court,  after  ad- 
verting to  the  conflict  of  authority  on  this  question,  say,  "  It  has  not  been  adjudged  in  this 
State  that  payment  in  advance  in  such  a  case  varies  the  rule  of  damages,  and  so  far  as  any  in- 
dication can  be  gathered  from  the  cases,  it  seems  to  be  in  the  direction  ot  not  permitting  that 
fact  to  affect  the  rule.  Upon  principle,  as  well  as  in  view  of  practical  consequences,  we  prefer 
20 


306  SALES  OF  PERSONAL  PROPERTY.  [CEL  X. 

Same  Reason  for  Rule  where  Property  has  Fallen.  —  And  if 
this  rule  be  sound,  it  applies  as  well  to  cases  where  the  property 
has  fallen,  as  to  those  where  it  has  risen.^  The  purchaser  claims 
his  advance ;  but  if  he  gets  the  value  of  the  article  at  the  time 
of  the  breach,  the  contract  is  performed  ;  and  if  this  sum  be 
less  than  his  advance,  his  loss  is  ascribable  purely  to  his  own 
bargain.  It  may  undoubtedly  be  urged,  and  with  force,  that  the 
contract  being  violated  by  the  defendant,  the  retention  of  any 
part  of  the  plaintiff's  money  is  against  conscience.  I  have  al- 
ready, however,  said  that  in  actions  of  contract  the  onl}^  object 
of  the  tribunal  must  be  to  carry  into  effect  the  agreement  of 
the  parties,  as  far  as  possible,  and  that  the  motives  of  the  de- 
faulter are  not  to  be  taken  into  view.  If  this  be  correct,  then 
certainly  it  removes  the  last  objection  to  the  adoption  of  the 
general  rule,  that  the  value  at  the    time  of  the   breach,  with 

interest  for  the  delay,  is,  with  the  exception  of  the  de- 
[275]  fendant's  liability  to  make  remuneration  for  loss  resulting 

from  facts  within  the  knowledge  and  in  the  contempla- 
tion of  both  parties  at  the  time  of  the  contract,  to  furnish  the 
measure  of  damages. 

I  may  be  allowed  to  say,  with  great  respect  for  the  very  able 
court  which  decided  the  case  of  Startup  v.  Cortazzi,  that  the 
vagueness  and  generality  of  its  observations  cannot  be  justified  ; 
no  clear  and  definite  rule  can  be  deduced  from  it,  and  the  ques- 
tion as  to  the  amount  of  damages  would  seem  to  have  been  left 
as  a  matter  for  the  mere  discretionary  control  of  the  jury.  If 
the  subject  of  compensation  is  ever  to  be  reduced  to  anything 
like  certainty,  if  any  hope  can  be  entertained  that  it  is  to  be 
relieved  from  the  vexatious  contradictions  and  perplexities  with 
which  it  is  now  infested,  the  reins  must  be  held  with  a  firmer 

the  result  at  which  Mr.  Sedgwick  has  arrived,  upon  a  most  elaborate  and  able  examination  of 
the  subject,  that  the  market  value  or  price  on  the  day  of  the  breach  of  the  contract  controls 
the  measure  of  damages."  So  in  the  same  State,  Mr.  Justice  Aldis,  after  stating  the  same  rule 
in  delivering  the  opinion  of  the  same  court  in  the  case  of  Rider  v.  Kelley,  32  Vt.  268,  says  (p. 
27.3) :  "It  stands  upon  the  reasonable  ground  that  as  the  title  to  the  property  remains  in  the 
seller,  he  can,  upon  non-acceptance  by  the  vendee,  sell  the  property  at  once  for  its  market  price, 
and  the  contract  price  will  indemnify  him  against  loss."  isQiipost,  479,  note.  In  England,  ac- 
tions for  the  non-delivery  of  railway  shares  pursuant  to  a  contract  of  sale  are  distinguished 
from  actions  for  not  replacing  borrowed  stock,  and  in  the  former  class  of  cases  the  market  price 
on  the  day  when  the  contract  of  sale  is  broken,  instead  of  that  on  the  day  of  trial,  is  fixed  as 
the  standard  for  the  computation  of  the  damages.  Ante,  263.  See  Earned  v.  Hamilton,  2 
Railw.  Ca.  624  ;  Shaw  v.  Holland,  15  M.  &  W.  136;  Tempest  v.  Kilner,  2  C.  B.  300;  3  C.  B. 
249.  In  the  late  English  Nisi  Prius  case  of  Elliott  v.  Hughes,  3  E.  &  E.  387,  the  rule  is 
apjirovcd  by  which  the  measure  of  damages  for  the  non-delivery  of  goods  paid  for  in  advance  is 
the  difference  between  the  price  paid  and  the  highest  price  up  to  the  trial. 

1  In  the  English  Common  Pleas  it  was  lately  held  that  payment  in  advance  did  not  affect 
the  rule  in  such  a  ease.  The  measure  is  the  ditference  at  the  time  of  the  delivery,  between  the 
value  of  goods  of  the  quality  contracted  for  and  that  of  those  delivered,  provided  the  goods 
can  then  be  resold.  Where  there  is  a  necessary  or  reasonable  delay  in  the  resale,  the  difference 
is  to  be  computed  on  the  day  of  the  resale.    Loder  v.  Kekule,  3  C.  B.  (N.  S.)  128. 


en.    X.]  THE    SCOTCH    RULE.  307 

hand,  and  the  power  of  the  court  over  the   amount  of  relief 
more  clearly  and  definitely  declared.* 

Principles  of  Scottish  Decisions.  —  In  Scotland,  indeed,  the 
whole  subject  that  we  are  now  considering,  has  been  dis- 
tinctly declared  to  belong  to  the  province  of  the  jury,  [276] 
who  are  to  be  allowed  to  enter  into  a  wide  range  of  in- 
vestigation into  the  objects  of  the  parties,  the  purpose  of  the 
contract,  and  the  conduct  of  the  defixulter.  Where  the  defend- 
ants had  2crongfuU//  failed  to  deliver  certain  hemp  at  St.  Peters- 
burg, and  the  plaintiff  could  not  have  supplied  himself  at  that 
place  during  the  season  with  the  article,  the  whole  matter 
was  very  elaborately  considered,  and  the  English  rule  rejected. 
It  should  be  mentioned,  that  the  price  of  the  article  had  not 
been  paid  ;  but  no  stress  is  laid  on  this  fact.  Lord  Medwyn, 
who  delivered  the  leading  opinion  of  the  Court  of  Sessions,  said 
that  — 

"  The  law  of  England,  taking  as  the  standard  the  market  price  of  the  article  on 
the  day  fixed  for  delivery,  appeared  to  be  adopted  chiefly  in  regard  to  articles  of 
ordinary  production  in  the  country,  as  bacon,  tallow,  etc.,  where  the  same  article 
may  be  easily  procured  in  the  mai'ket,  and  where  the  party  could  easily  supply 
himself  if  disappointed  by  the  seller." 

He  then  proceeded  to  examine  the  Scotch  cases,  and  deduces 
from  them  the  following  principles  :  — 

*  In  Louisiana,  on  an  ao;reeraent  to  trans-  The  court  held  that  the  defendant  had  to  do 

fer  stock,  which  afterwards  had  risen  in  value,  the   first  act,  /.  e.  give  notice  ;  tliat  he  had  till 

but  which  had  not  been  paid  for,  and  which,  six  days  before  the  14th  of  February  to  give 

at  the  time  of  the  breach  of  the  contract,  was  notice ;  and  as,  if  he  had  then  given  notice, 

at  the  same  price,  the  Supreme  Court  said  that  he  would  have  had  till  the  last  day  to  deliver 

the  damages  at  the  time  of  the  default  or  the  the  flour,  the  actual  breach  by  the  non-delivery 

breach    of    contract,    are  the  only    damages  of  the  flour  must  be  taken  to  have  occurred  on 

which   the   plaintitf  can   recover.      Vance   v.  that  day,  and  damages  were  computed  accord- 

Tourne,  13  La.  Rep.  225.  ingly-     Quarles  v.  George,  23  Pick.  400. 

It  has  been  held  generally,  in  Maine,  in  an         Where  a  pui-chaser   at   a   sherifi^'s  sale  did 

action  on  an  agreement  to  deliver  certain  chat-  not  fulflll  his  contract,  and  tlie  property  was 

tels  on  demand,  that  the  market  value  of  the  resold,  it  was  held,  in  an  action  by  the  sherifl", 

property  at  the  time  of  demand  was  the  meas-  that  the  measure  of  damages  was  the  difference 

ure  of  damages.     Smith  v.  Berry,  18  Maine  between  the  first  and  second  sales.     Gaskell  v. 

E.  122.  Morris,  7  Watts  &  Serg.  33. 

In  a  case  in   Massachusetts,    the   contract         In  Kentucky,  where  one  Yodcr  covenanted 

■was,  that  George   should  deliver  to   Quarles  to  furnish  Allen,  by  a  given  day,  two  slaves, 

1,000  barrels  of  flour  at  S6  per  barrel,  at  any  in  consideration   of  $450  then  paid,  and  S'lU) 

time    within   six   months  —  George    to    give  to  be  paid  on  their  deliver}^  it  was  said  by  the 

Quarles  six   days'   notice   prior   to  delivery ;  Court  of  Appeals,  that  "  for  a  failure  to  fur- 

Quarles  to  pay  tiie  price  aforesaid,  and  either  nish    the   slaves   according    to    contract,    the 

party    to  be   released,   if    desiring   it,   within  obligors   were   liable   for   damages   to   Allen, 

three  months,  on  paying  $500  to  the  other.  The  measure  of  those  damages  was  the  value 

This  last  provision  was  not  taken  advantage  of  the  negroes  described  at  the  time  and  place 

of      On  the  13th  of  February,   Quarles  de-  of  performance.     This  was  the  province  of  the 

manded  it ;  it  was  not  delivered ;  and  the  ques-  jury   to   ascertain.     It  has  done  so,  and    the 

tion  was,   on  what  day  the  damages  were  to  amount  of  consideration  did  not  form  a  subject 

be  computed,  it  being  agreed  that  such  dam-  of  material  inquiry."     Yoder  u.  Allen,  2  Bibb, 

ages  were  the  difference  between  the  price  men-  338. 
tioned  in  the  contract  and  the  actual  value. 


308  SALES  OF  PERSONAL  PROPERTY.  [CH.  X. 

First.  "  That  the  damage  will  be  differently  estimated  according  as  the  fail- 
ure to  implement  (perform)  has  been  thought  the  fault  of  the  seller  or  not.  In 
the  latter  case,  on  payment  of  the  loss  actually  incurred,  the  seller  ought  to  be 
free.     Equity  interposes  to  make  the  damage  as  light  as  possible." 

Second.  "  But  this  principle  will  not  apply,  and  equity  cannot  be  pleaded,  if 
the  non-delivery  has  arisen  from  the  fault  of  the  seller,  in  order  to  obtain  a 
higher  price  from  another But  circumstances  in  the  buyer's  con- 
duct also  may  affect  the  estimate  of  damage  due  to  him,  even  where  the  non- 
implement  has  been  blamable ;  for  it  is  indemnification  of  loss  merely  he  is 
entitled  to,  and  his  claim  does  not  proceed  on  the  principle  of  punishment  for  a 
wrong." 

Tliird.  "  Hence  if  the  buyer  had  before  delivery  resold  the  article,  he  can 
claim  only  the  difference  of  price  between  the  two  sales,  as  this  is  the  amount  of 
his  loss,  unless  the  parties  who  made  the  purchase  also  claim  and  obtain  dam- 
ages." 

Fourth.  "  If  the  person  supplied  himself  at  the  market  price  with  the  article, 
he  must  limit  himself  in  his  claim  of  indemnification  to  the  difference  between 
the  price  paid  and  the  contract  price,  although  he  could  show  that  the  seller,  by 
the  rise  of  the  mai'ket,  had  made  double  the  sum  by  non-delivery." 

The  learned  judge  then  proceeds  to  inquire,  — 

"  What  is  the  legal  rule  for  fixing  the  damage  in  a  case  where  the  non-de- 
livery is  willful,  and  performance  (implement)  refused."  And  he  says, 
[2771  "'^^^  conclusion  would  not  seem  unreasonable,  that  if  this  is  withheld 
by  the  seller  for  the  gain  he  is  to  make  or  has  made  by  disposing  of  it  to 
another  at  a  higher  price,  the  purchaser  is  entitled  to  have  the  highest  price  of 
the  article  till  the  decree  is  pronounced  in  his  favor,  provided  always  there  be  no 
undue  delay  in  bringing  his  action,  and  no  improper  delay  in  carrying  it  on,  and 
that  if  the  market  has  been  rising  all  along,  the  very  highest  price  prior  to 
decree  is  to  be  assumed  as  the  estimate  of  the  damage." 

But  after  stating  that  the  EngUsh  and  the  civil  law  are  against 
this  rule,  he  proceeds,  — 

"  The  reason  for  resisting  such  a  mode  of  estimating  the  damage  is,  that  it 
gives  the  plaintiff  (purchaser)  the  utmost  price  of  speculation  without  any  risk 
of  loss,  and  takes  it  from  the  seller,  who,  unless  he  has  held  on  to  the  goods  (a 
very  unlikely  supposition,  a^s  the  temptation  to  dispose  of  them  about  the  time  of 
breaking  the  contract  probably  led  to  it),  will  be  made  to  suffer  not  only  much 
beyond  his  own  profit,  but  will  be  compelled  to  put  into  the  pocket  of  his  adver- 
sary much  beyond  indemnification  for  his  loss This  further  reason  may 

be  assigned  against  this  rule  for  estimating  damage,  that  much  uncertainty  and 
great  inequality  would  be  introduced  into  such  claims."  He  then  proceeds : 
"  Still,  it  is  to  be  inquired  whether  there  is  any  principle  in  our  law  for  claiming 
as  damages  the  profit  which  might  have  been  made  by  a  sale  of  this  article  in  a 


CH.  X.]  DAMAGES    AS   AGAINST   VENDOR.  309 

rising  market There  really  seems  to  me  to  be  much  good  sense  in 

this  conclusion,  that  no  fixed  rule  as  to  time  will  suit  each  case,  but  that  it  may 
vary  according  to  circumstances In  estimating  damages  we  are  en- 
titled to  look  at  the  use  the  one  party  intended  to  make  of  it,  and  which  the 
other  might  presume  was  intended.  It  is  upon  this  principle  that  the  seller  is 
only  bound  to  repair  the  loss  which  relates  to  the  thing  itself,  and  which  results 
directly  from  it,  not  consequential  damage.  It  is  thatx)nly  which  the  parties  are 
called  upon  or  can  be  supposed  to  contemplate  jit  the  time  of  the  sale  or  the 
breach  of  bargain.  And  if  the  article  were  purchased  by  a  dealer  in  it,  with  a 
view  to  be  resold  for  profit,  and  this  was  in  the  contemplation  of  both  parties,  I 
am  unable  to  see  how  that  can  be  laid  out  of  view  in  estimating  the  loss  sus- 
tained by  non-delivery,  more  especially  when  that  very  advantage  which  the 
purchaser  would  have  had,  the  seller  has  obtained,  and  which  in  fact  has  occa- 
sioned his  bad  faith  in  the  transaction In  the  present  case,  it  must 

be  held  that  the  defenders  could  have  given  delivery,  and  that  they  only  put  it 
out  of  their  power  willfully  and  wrongfully,  in  order  to  obtain  a  higher  price  for 
it;  that  this  higher  price  is  now  in  their  pocket,  which  would  most  probably  have- 
been  the  profit  onthe  sale  of  the  article  by  the  purchaser We  can- 
not doubt  that  the  higher  price  was  the  temptation  for  their  breach  of  bargain ; 
and  I  think  that  this  affords  the  true  estimate  of  damage.  I  am  quite  aware  tliat 
this  throws  much  uncertainty  into  every  case,  but  not  greater  than  if  we  adopt 
either  the  date  of  the  summons  or  of  the  verdict  as  the  period  for  estimating 
damage  ;  one  would  probably  give  too  little  and  the  other  too  much  in  a 
rising  market.  I  see  no  better  principle  than  this,  in  such  a  case,  that  [2781 
the  profit  which  the  one  would  have  made,  the  other  probably  has  made  ; 
and  justice  requires  that  the  one  should  not  suffer  by  the  other's  wrong,  nor  the 
other  benefit  by  his  own.  No  doubt  it  is  the  price  of  speculation  without  any 
risk  of  loss ;  but  if  we  reject  the  price  at  the  date  of  delivery  as  offering  any 
encouragement  to  bad  faith  in  a  rising  market,  and  also  the  date  of  citation  or 
of  verdict  as  putting  it  too  much  in  the  purchaser's  power  to  protract  his  judicial 
demand  and  influence  his  claim  to  what  he  never  would  have  obtained  as  a  profit, 
nor  the  other  party  have  secured  by  the  actual  sale  of  the  article,  I  really  do 
not  see  what  other  rule  can  be  adopted.  It  is  always  a  difficult  matter  to  fix  on 
the  amount  of  damages ;  the  elements  out  of  which  they  are  to  be  estimated  are 
various  and  anomalous.     I  think  it  is  peculiarly  a  jury  question."* 

Having  thus  endeavored  to  arrive  at  the  general  result  that 
the  market  price  or  value  on  the  day  of  the  breach  controls  the 
measure  of  damages,  it  still  remains  to  be  seen  how  that  value 
is  to  be  determined. 

Market  Value  how  Determined.  —  In  a  case  on  the  Pennsyl- 

*  Watt  V.  Mitchell,  1  Dunlop,  Bell  &  Mur-  12  Jurist,  295  (1  H.  of  L.  Cases,  381),  where 

ray's   Session  Cases    (2cl   series),  1157.     The  the  power  of  the  jury  over  the  subject  is  dis- 

whole  case  should  be  carefully  examined.  Sec  tinctly  declared  to  be  the  Scottish  law. 
also,  Dunlop  v.  Higgins,  in  House  of  Lords, 


310  SALES  OF  PERSONAL  PROPERTY.  [CH.  X. 

vania  Circuit,*  where  suit  was  brought  on  a  contract  to  deliver 
coffee,  not  paid  for,  the  rule  was  declared  to  be  the  market  price 
on  the  day  fixed  for  performance  ;  but  it  also  became  necessary 
carefully  to  determine  what  was  the  market  price.  In  charf^ing 
the  jury,  Baldwin,  J.,  said,  "  You  must  take  what  you  believe 
the  market  price  or  value,  but  may  take  the  range  of  the  market 
as  proved  by  the  witnesses,  fixing  on  the  highest,  lowest,  or 
medium  rate  at  your  discretion.  We  think  the  rule  applicable  to 
contracts  to  deliver  stocks  a  correct  one  in  cases  of  this  kind,  by 
keeping  within  the  range  of  the  market  on  the  day  of  delivery, 
to  fix  on  the  higher,  lower,  or  medium  value,  as  the  breach  of  the 
contract  may  have  been  willful  or  innocent  in  your  opinion.  The 
plaintiff  is  entitled  to  your  verdict  for  such  value,  with  interest 
from  the  day  of  delivery."  A  motion  was  made  to  set  aside  the 
verdict,  on  the  ground  of  excessive  damages,  which  was  granted  ; 
and  in  delivering  his  opinion,  Hopkinson,  J.,  said,  — 

"  It  is  the  price,  the  market  price  of  the  article  that  is  to  furnish  the  measure 
of  damages.  Now,  what  is  the  price  of  a  thing,  particularly  the  market  price  ? 
We  consider  it  to  be  the  value,  the  rate  at  which  the  thing  is  sold.  To 
|_279j  make  a  market  there  must  be  buying  and  selling,  purchase  and  sale.  If 
the  owner  of  an  article  holds  it  at  a  price  which  nobody  will  give  for 
it,  can  that  be  said  to  be  its  market  value  ?  Men  sometimes  put  fantastical 
prices  upon  their  property.  For  reasons  personal  and  peculiar,  they  may  rate 
it  much  above  what  anyone  would  give  for  it.  Is  that  its  value?  Further, 
the  holders  of  an  article,  as  flour,  for  instance,  under  a  false  rumor,  which  if 
true  would  augment  its  value,  may  suspend  their  sales,  or  put  a  price  upon  it, 
not  according  to  its  value  in  the  actual  state  of  the  market,  or  the  actual  circum- 
stances which  affect  the  market,  but  according  to  what  in  their  opinion  will  be 
its  market  price  or  value  provided  the  rumor  shall  prove  to  be  true.  In  such  a 
case  it  is  clear  that  the  asking  price  is  not  the  worth  of  the  thing  on  the  given 
day,  but  what  it  is  supposed  it  will  be  worth  at  a  future  day,  if  the  contingency 
shall  happen  which  is  to  give  it  this  additional  value.  To  take  such  a  price  as 
a  rule  of  damages,  is  to  make  a  defendant  pay  what  never  in  truth  was  the  value 
of  the  article,  and  to  give  the  [JaiutifFa  profit  by  a  breach  of  the  contract,  which 
be  never  could  have  made  by  its  performance. 

"  The  law  does  not  intend  this  ;  it  will  give  a  full  and  liberal  indemnity  for 
the  loss  sustained  by  the  injured  party,  and  means  to  impose  no  higher  penalty 
than  this  on  the  defaulter." 

Where  a  given  place  is  fixed  on  by  the  parties  as  that  for 
delivery,  it  seems  to  be  well  settled  that  the  inquiry  as  to  prices 
is  limited  peremptorily  to  that  particular  place.^     So  in  New 

*  Blydenburgh  et  al.  v.  Welsh,  1  Baldwin,  331. 
1  Worthen  v.  Wilmot,  30  Vt.  (1  Shaw,  533)  ;  Phelps  v.  McGee,  18  111.  155  ;  Field  v.  Kin- 


CH.   X.]  DAMAGES   AS   AGAINST   VENDOR.  311 

York,  where  assumpsit  was  brought  for  breach  of  a  contract  to 
deUver  100,000  shhigles  at  a  landing-phice  called  Bailey  Town, 
on  Seneca  Lake,  on  the  1st  of  June,  1828,  for  wliich  the  plaintiff 
was  to  pay  $125,  or  $1.25  per  thousand,  the  plaintiff  proved  the 
value  of  the  shingles  at  the  place  of  delivery  on  the  day  (1st  of 
June)  to  have  been  $1.87  or  $2.00  per  thousand.  The  defendant 
was  allowed  to  prove  the  value  of  shingles  at  Geneva,  and  other 
jplaces,  and  from  an  average  of  prices  to  find  the  value  ;  but,  the 
plaintiff  moving  for  a  new  trial,  this  was  held  wrong,  and  that 
the  true  rule  of  damages  was  the  difference  between  the  price  as 
fixed  by  the  parties  on  the  day  and  at  the  place  of  delivery,  and 
the  market  value  at  the  same  time  and  place ;  and  a  new  trial 
was  ordered.*  ^ 

Contracts  partly  Fulfilled  by  Vendor,  must  be  wholly  Af- 
firmed   OR   Rescinded   by  Vendee.  —  Contracts  of  sale  may  be 
broken  by  the  seller  in  still  another  mode.     The  goods 
when  tendered  by  the  vendor  may  not  prove  to  be  of  the  [280] 
kind  or  quality  required  by  the  contract.     In  such  case 

*  Grefforv  v.  McDowell,  8  Wend.  435.     In  clifFerence  between  the  price  agreed  on  between 

a  case  in  Arkansas,  in  an  action  on  an  agree-  the  parties  and  the  market  price  of  the  pork 

ment  by  which  Hanna  sokl  Harter  ten  hogs,  at  the  time  of  the  delivery  at  the  place  fixed 

the  defendant  below  refused  to  deliver,  it  was  on  by  the  agreement.      Hanna  v.  Harter,  in 

held  that   the  measure  of  damages  was  the  error,  2  Ark.  397. 

near,  4  Banks  (Kansas),  476.  But  although  this  is  the  general  rule,  yet,  like  most  legal 
principles,  it  must  be  taken  reasonably,  without  a  blind  exactness  in  its  practical  application, 
and  may  be  modified  by  circumstances.  If  there  is  no  market  value,  or  but  an  uncertain  one, 
the  value  should  be  ascertained  by  comparison  of  such  prices  and  sales  as  can  be  shown,  and  by 
reference  to  the  reasonable  probabilities  of  the  case.  Thus,  in  such  a  case,  recourse  may  be 
had  to  the  sales  which  were  made  nearest  in  time  and  in  the  nearest  market.  See  Berry  v. 
Dwinel,  44  Maine,  255  ;  Wemple  v.  Stewart,  22  Barb.  N.  Y.  154.  And  the  rule  is  the  same 
in  trover.  Selkirk  v.  Cobb,  13  Gray.  313  ;  post,  474.  So  where  the  defendants  were  liable  for 
injuries  to  the  jilaintiff's  rafts,  caused  by  an  artificial  flood  which  was  )>roduced  by  a  dam 
which  they  had  illegally  constructed,  and  there  was  no  definite  value  of  rafts  on  the  creek 
where  the  injuries  occurred,  the  price  of  rafts  at  the  nearest  market  was  some  guide  in  deter- 
mining the  value  at  the  creek  and  proper  to  be  considered.  Dubois  v.  Glaub,  52  Penn.  238 
(cited  ante,  p.  80,  note  1).  So  evidence  of  the  cost  of  the  goods  in  the  market  where  they 
were  purchased,  adding  the  expenses  of  transportation,  the  duties,  and  a  fair  allowance  for 
profits,  and  also  evidence  of  the  sales  of  like  articles  for  several  months  before  and  after  the 
sale  in  question,  and  of  the  repurchase  of  some  of  the  goods  for  cash  by  the  plaintifi'  at  ad- 
vanced rates  within  two  months  afterwards,  was  held  admissible  in  relation  with  other  evi- 
dence, as  the  measure  of  damages  at  the  time  and  place.  Eaton  v.  Melius,  7  Gray  (Mass.), 
566.  "  If  at  any  particular  time  there  be  no  market  demand  for  an  article,  it  is  not  on  that 
account  of  no  value.  What  a  thing  will  bring  in  the  market  at  a  given  time  is  perhaps  the 
measure  of  its  value  then,  but  not  the  only  one."  Trout  v.  Kennedy,«47  Penn.  387.  Opinion 
of  the  court,  per  Strong.  J. 

The  value  for  a  special  use  is  usually  immaterial.  Bouton  v.  Reed,  13  Gray,  530.  In  trover, 
however,  as  we  shall  see,  the  rule  is  more  enlarged,  and  where  the  property  lias  little  or  no 
market  value,  its  actual  value  to  the  OTvner  is  the  rule.  Stickney  v.  Allen,  10  Gray,  352  ;  post, 
474. 

1  But  this  rule  may  be  affected  by  that  in  the  case  of  Hadley  v.  Baxendale,  considered  ante, 
76,  et  SCI].  So  where  a  quantity  of  pork,  although  contracted  for  delivery  at  one  place,  was 
known  to  the  vendor  to  be  intended  for  use  by  the  vendee  at  another  place,  and  when  it  had 
reached  the  latter  proved  to  be  damaged,  the  difference  in  value  at  the  ultimate  point  was  held 
to  furnish  the  measure.     Converse  v.  Prettyman,  2  Minn.  229. 


312  SALES  OF  PERSONAL  PROPERTY.  [CH.  X. 

the  vendee  must  either  affirm  or  rescinrl  the  contract  in  ioto. 
The  buyer  cannot,  on  receiving  a  part  of  tlie  quantity  sold,  re- 
tain it,  and  chiim  damages  for  the  non-dehvery  of  the  entire 
quantity.  Nor  can  he  require  the  deHvery  of  the  residue,  re- 
tainina:  a  claim  for  dama^-es.  He  must  either  receive  the  article 
as  it  is ;  or  he  must  return  the  portion  delivered,  and  then  en- 
force his  claim  for  damages.*  ^ 

Contracts  with  other  than  a  Pecuniary  Standard.  —  We  have 
already  considered  the  subject  in  regard  to  notes  payable  in 
specific  articles,!  and  have  also  examined  a  class  of  barter  con- 
tracts,$  where  the  price  of  the  article  sold  is  agreed  to  be  paid 
not  in  money  but  some  certain  specific  article.  In  all  these 
cases  the  sound  rule  seems  to  be  that  the  parties  shall  be  con- 
sidered as  having  elected  a  criterion  of  value  different  from  the 
ordinary,  pecuniary  standard ;  and  having  so  made  their  con- 
tract, the  only  duty  of  the  courts  is  to  enforce  it  by  awarding 
the  value  of  the  thing  agreed  to  be  delivered  in  payment.^ 

Failure  of  Purchaser.  —  Having  thus  considered  the  meas- 
ure of  damages  as  against  the  vendor,  when  he  fails  to  deliver 
the  article  contracted  for,  we  have  now  to  examine  the  cor- 
responding questions  as  to  the  purchaser,  upon  his  failure  to 
make  payment. 

In  these  cases,  the  contract  fixes  the  price  or  it  does  not.  If 
this  point  be  left  doubtful,  and  the  vendee  resell  the  article,  he 
can  be  made  liable  for  the  price  received,  deducting  usual  charges 
and  commissions.  He  is  treated  as  a  trustee  or  agent  of  the 
plaintiff,  selling  on  his  account  and  for  his  benefit ;  and  it  is  both 
equitable  and  legal  that  having  received  the  money  he  should 
pay  it  over  to  the  owner,  after  retaining  a  due  compensation  for 
his  services.§  But  this  is  a  very  unusual  case ;  and  the  contract 
generally  fixes  the  price. 

Where  a  vendee  is  sued  for  non-performance  of  the  contract 
on  his  part,  in  not  paying  the  contract  price,  if  the  goods  have 
been  delivered,  the  measure  of  damages  is  of  course  the  price 

*  Shields  V.  Pcttee,  2  iandf.  S.  C.  262.  J  Ante,  212. 

t  Ante,  252.  §  Greene  v.  Bateman,  2  Woodb.  &  M.  359. 

^  In  an  action  to  recover  the  price  of  goods  sold,  the  bnyer  may  show  in  reduction  of  dam- 
ages that  the  goods  were  not  of  the  quantity  or  quality  alleged.  Westcott  v.  Nims,  4  Cush. 
(Mass.)  215. 

^  So  also  in  actions  for  rent,  payable  in  kind,  the  measure  of  damages  for  failure  to  deliver,  is 
the  value  of  the  articles  at  the  time  and  place  of  delivery.  Safely  v.  Gilmore,  21  Iowa,  588. 
And  the  court  rejected  tlie  rule  of  the  highest  intermediate  value,  though  the  ground  of  the 
distinction  was  not  intimated. 


CH.    X.]  DAMAGES    AS    AGAINST    VENDEE.  313 

named  in  the  agreement ;  ^  but  if  their  possession  has  not  been 
changed,  it  has  been  doubted  whether  the  rule  of  dam- 
ages is  the  price  itself,  or  only  the  difference  between  the  [281] 
contract  price  and  the  value  of  the  article  at  the  time 
fixed  for  its  delivery.  It  seems  to  be  well  settled  in  such  cases, 
that  the  vendor  can  resell  them  if  he  see  fit,  and  charge  the 
vendee  with  the  difference  between  the  contract  price  and  that 
realized  at  the  sale*  '^  Though  perhaps  more  prudent,  it  is  not 
necessary  that  the  sale  should  be  at  auction ;  it  is  only  requisite 
to  show  that  the  property  was  sold  for  a  fair  price.!  But  if  the 
vendor  does  not  pursue  this  course,  and  without  reselling  the 
goods  sues  the  vendee  for  his  breach  of  contract,  the  question 
arises,  which  we  have  already  stated,  whether  the  vendor  can 
recover  the  contract  price,  or  only  the  difference  between  that 
price  and  the  value  of  the  goods  which  remain  in  the  vendor's 
hands ;  and  the  rule  appears  to  be,  that  the  vendor  can  recover 
the  contract  price  in  full.^ 

In  a  suit  brought  by  vendor  against  vendee,  the  plaintiff  had 
contracted  to  sell  the  defendant  three  hundred  tons  of  Campeachy 

*  Lanfrford  v.  Tyler's  Adm'r,  1  Salk.  113  ;         t  White  v.  Kearney,  2  La.  Ann.  K.  639. 
S.  C.  6  Mod.  162  ;  Cuddee  v.  Rutter,  5  Vin. 
Abr.  540 ;  Sands  v.  Taylor,  5  J.  R.  395. 

1  On  a  contract  of  sale,  Avhere  no  price  is  agreed  npon,  the  value  of  the  article  in  the  market 
is  the  rule.  Henckley  v.  Hendrickson,  5  McLean's  C.  C.  R.  170.  Where  plaintiff  and  defend- 
ant contracted  for  the  sale  of  50,000  bricks,  and  the  plaintiff  delivered  20,000,  when  the  defend- 
ant wrongfully  rescinded  the  contract  and  refused  to  receive  any  more,  it  was  held,  that 
plaintiff  was  entitled  to  recover  the  full  market  value  of  those  delivered.  Terwilliger  v.  Knapp, 
2  E.  D.  Smith's  (N.  Y.)  C.  P.  R.  86. 

-  Such  sale,  however,  should  be  made  on  notice  to  the  vendee.  The  vendor  cannot  by  his 
voluntary  act  and  without  notice  to  the  vendee,  fix  the  measure  of  damages ;  and  whei-e  the 
agreement  of  sale  is  executory  only,  and  the  title  is  still  in  the  vendor,  his  remedy  and  the 
measure  of  his  damages  are  the  recovery  of  the  difference  between  the  real  value  and  the  con- 
tract price  in  an  action  against  the  vendee  for  that  purpose.  Mallory  v.  Lord,  29  Bai'b.  454. 
Where  the  vendor  has  actually  taken  all  the  steps  necessary  to  vest  the  title  to  the  goods  sold 
in  the  vendee,  he  may  sue  for  goods  sold  and  delivered,  and  the  rule  of  damages  would  be  the 
contract  price.  But  where  he  is  ready  and  willing  to  perform  and  offers  to  do  so,  but  the 
vendee  refuses,  even  though  the  title  is  not  vested  in  the  vendee,  the  vendor  still  has  his  action 
on  the  contract  for  damages.  But  the  rule  of  damages  in  such  case  would  be  the  actual  injury 
sustained,  which  is  ordinarily  the  ditference  between  the  value  of  the  property  at  the  time  of 
the  refusal  and  the  ])rice  agreed  on.     Ganson  v.  Madigan,  13  Wis.  67. 

^  In  an  action  for  the  non-acceptance  of  property  sold  or  contracted  for,  the  measure  of  dam- 
ages is  the  amount  of  actual  injury  sustained  by  the  plaintiff  in  consequence  of  such  non- 
acceptance,  which  is  usually  the  difference  between  the  price  agreed  and  its  value,  where  the 
price  exceeds  the  value.  If  it  is  worth  the  price  the  damages  are  nominal  only.  But  where 
the  property  is  worthless  in  the  hands  of  the  plaintiff,  the  whole  price  agreed  should  be  re- 
covered. Allen  V.  Jarvis,  20  Conn.  38;  Williams  v.  Jones,  1  Bush  (Kentucky),  621.  In  oi'der 
to  give  the  vendor  complete  indemnity,  he  must  recover  the  difference  between  the  agreed  price 
and  that  at  which  he  could  sell  on  the  day  when  the  vendee  was  bound  to  receive  and  pay  for 
the  thing  bought.  Dana  v.  Fiedler,  2  Kern.  (N.  Y.)  41  ;  see  also,  Haskell  v.  McHenry,  4  Cal. 
411  ;  Whitmore  v.  Coats,  14  Mo.  9  ;  Orr  v.  Bigelow,  14  N.  Y.  556  ;  Ballcntine  v.  Robinson, 
46  Penn.  177.  Where  a  quantity  of  straw  was  sold,  a  portion  of  which  only  was  taken  away, 
and  the  buyer  subsequently  refused  to  take  the  remainder,  the  vendor  threw  it,  the  next  spring, 
it  having  become  damaged,  into  the  barn-yard  to  his  cattle.  Held,  that  the  measure  of  damages 
against  the  vendee  for  refusing  to  complete  his  contract,  was  the  contract  price  less  its  value 
to  the  vendor  for  the  use  to  which  it  was  applied.     Chamberlain  v.  Farr,  23  Vt.  265. 


314  SALES  OF  TERSONAL  PROrERTY.  [CH.  X. 

logwood ;  "  such  as  may  be  determined  to  be  otherwise  by  im- 
partial judges,  to  be  rejected ; "  the  defendant  refused  to  accept 
the  wood  offered,  because  it  was  not  all  Campeachy  logwood  ;  it 
was  insisted  on  his  behalf  that  he  was  not  bound  by  the  contract 
price,  as  a  part  only  of  the  stipulated  quantity  had  been  furnished ; 
and  that  the  measure  of  damages  was  the  difference  between  the 
contract  price  and  what  the  article  would  have  sold  for  at  the 
time  when  the  true  quantity  of  Campeachy  logwood  was  ascer- 
tained. But  the  Court  of  King's  Bench  held,  that  the  defendant 
was  bound  to  take  the  part  which  was  Campeachy,  and  that  he 
having  repudiated  the  whole  contract,  the  measure  of  the  dam- 
ages was  the  contract  price  on  that  quantity,  i.  e.  the  Campeachy 
wood* 

The  question  has  been  considered  in  New  York,  and 
[282]  decided  in  the  same  way.f  The  plaintiff,  a  carriage- 
maker,  was  employed  to  build  a  sulky  for  the  defendant. 
A  due  tender  having  been  made  of  the  carriage,  and  it  being 
deposited  with  the  plaintiff  for  his  use,  the  defendant  having 
refused  payment,  and  suit  brought,  it  was  insisted  that  the 
measure  of  damages  was  not  the  value  of  the  sulky,  but  only 
the  expense  of  taking  it  to  the  residence  of  the  defendant,  de- 
lay, loss  of  sale,  etc. ;  but  the  court  held  otherwise,  using  this 
language :  — 

"  Upon  principle,  I  would  ask  what  should  be  the  rule  ?  A  mechanic  makes 
an  article  to  order,  and  the  customer  refuses  to  receive  it ;  is  it  not  right  and 
just  that  the  mechanic  should  be  paid  the  price  agreed  upon,  and  the  customer 
left  to  dispose  of  the  article  as  he  may  ?  A  contrary  rule  might  be  found  a 
great  embarrassment  to  trade.  The  mechanic  or  merchant,  upon  a  valid  con- 
tract of  sale,  may,  after  refusal  to  receive,  sell  the  article  to  another,  and  sue  for 
the  difference  between  the  contract  price  and  the  actual  sale. 

"  Where  there  has  been  a  valid  contract  of  sale,  the  vendor  is  entitled  to  the 
full  price,  whether  the  vendee  receive  the  goods  or  not.  I  cannot  see  why  the 
same  principle  is  not  applicable  in  this  case.  Here  was  a  valid  contract  to 
make  and  deliver  the  sulky.  The  plaintiff  performed  the  contract  on  his  part ; 
the  defendant  refused  to  receive  the  sulky.  The  plaintiff  might,  upon  notice, 
have  sold  the  sulky  at  auction  ;  and  if  it  sold  for  less  than  $80  the  defendant 
must  have  paid  the  balance.  The  reason  given  for  this  rule  by  Kent,  C.  J.,$ 
is,  that  it  would  be  unreasonable  to  oblige  him  to  let  the  article  perish  on  his 

*  Graham  v.  Jackson,  14  East,  498.      We  resulting  from  the  loss  of  his  bargain.     See  a 
have  already  {ante,  197)  had  occasion  to  con-  recent  case  at  Nisi  Prius,  Dunlop  v.  Grote,  2 
sider  the  analogous  doubt  that  exists  as  to  the  Car.  &  K.  1.53,  where  the  plaintiffs  in  a  some- 
measure  of  damages  on  contracts  for  the  sale  what  special  case,  were  held  entitled  to  recover 
and  purchase  of  lands  ;   whether  the  vendor,  the  whole  contract  price, 
having  done  all  in  his  power  to  complete  his  f  Bement  v.  Smith,  15  Wendell,  49.3. 
agreement,  is  at  liberty  to  recover  the  entire  t  Sands  v.  Taylor,  5  Johns.  11.  411. 
contract  price,  or  confined  to  the  actual  injury 


en.  X.] 


DAMAGES    AS    AGAINST    VENDEE.  315 


hands  and  run  the  risk  of  the  insolvency  of  the  bnyer.  ]?ut  if,  after  tender  or 
notice,  vvhicliever  may  be  necessary,  the  vendor  chooses  to  run  that  risk,  and 
permit  the  article  to  perish,  or,  as  in  this  case,  if  he  deposit  it  with  a  third  per- 
son for  the  use  of  the  vendee,  he  certainly  must  have  a  right  to  do  so,  and 
prosecute  for  the  whole  price.  Suppose  a  tailor  makes  a  garment,  or  a  shoe- 
maker a  pair  of  shoes,  to  order,  and  performs  his  part  of  the  contract,  is  he  not 
entitled  to  the  price  of  the  article  furnished?  I  think  he  is,  and  that  the  plain- 
tiff in  this  case  was  entitled  to  his  verdict."  *  ^ 

So  in  Massachusetts,  where  a  contract  had  been  made  for  the 
purchase  of  railway  shares,  and  a  part  of  the  price  paid, 
and  the  vendor  caused  them  to  be  transferred  on   the  [283] 
books  of  the  company,  but   the    defendant   refused   to 
accept  them  after  such  transfer,  it  was  held  that  the  measure  of 
damages  was  the  contract  price. t 

Where,  however,  the  plaintiff  has  not  the  goods  that  he 
agrees  to  sell,  but  makes  a  side-contract  with  another  party  to 
furnish  them,  he  will  only  be  allowed  to  recover  the  difference 
between  the  original  contract  price  and  the  market  price  at  the 
time  of  the  offer,  with  interest.^  ^ 

Where  goods  are  sold  to  be  paid  for  by  a  note  or  bill  payable 
at  a  future  day,  and  the  note  or  bill  is  not  given,  it  is  well 
settled  in  England  and  in  this  country,  that  the  vendor  cannot 
maintain  assumpsit  on  the  general    count  for  goods  sold  and 

*  It  has  been  held  in  Pennsylvania,  where  ceeded  to  say,  "  Properly  speakins?,  the  seller 

goods  are  sold  at  auction  on  credit,  and  the  cannot  recover  the  price  lulien  he  has  retained  the 

vendee  refuses  to  take  them,  the  owner  may,  goods  in  consequence  of  the  buyer's  refusing  to 

before  the  expiration  of  the  credit,  sue   the  comply  with  any  part  of  the  contract."    Girard 

vendee  for  his  breach  of  contract ;  and  in  such  v.  Taggart,  5  Serg.  &  E.  19. 

case,  tlie  measure  of  damages  is  the  difference  t  Thompson  v.  Alger,  12  Met.  428. 

between  the  price  agreed  to  be  paid  for  the  J  Stanton  v.  Small,  3  Sandf  S.  C  P.  230. 

goods  and   their  value  at  the  time  that  the  So  too  in  Ohio,  M'Naughter  v.  Cassally,  4 

vendee  refused  to  take  them.     This  is  clearly  M'Lean,  530  ;  though  in  this  case  it  is  said  a 

so,  because  no  action  can  be  brought  for  the  portion  of  the  property  was  ready  to  be  deliv- 

price  of  the  goods  until  the  time  of  credit  is  ered. 
expired.     But  in  this  case,  Gibson,  J.,  pro- 


1  So  in  Dustan  v.  McAndrew,  10  Bosw.  (N.  Y.)  130.  But  see  Crooks  v.  Moore,  1  Sandf. 
(N.  Y.)  297. 

■-'  The  sufficiency  of  this  distinction  is  questioned  by  Professor  Parsons.  3  Pars.  Con.  5th 
ed.  p.  210,  and  note  w. 

Where  there  is  an  executory  contract  for  the  manufacturing  and  supply  of  goods  from 
time  to  time,  to  be  paid  for  after  delivery,  if  the  purchaser,  having  accepted  and  paid  for  a 
portion  of  the  goods  contracted  for,  gives  notice  to  the  vendor  not  to  manufacture  any  more,  as 
lie  has  no  occasion  for  them,  and  will  not  accept  or  pay  for  them,  the  vendor  may,  without 
manufacturing  and  tendering  the  rest  of  the  goods,  maintain  an  action  against  the  purchaser 
for  breach  of  contract.  And  where,  by  the  tenns  of  such  a  contract,  the  goods  were  to  be  de- 
livered at  stated  periods,  but  were  not'all  delivered  at  the  respective  times,  the  purchaser  not 
.  countermanding  them,  but  requesting  from  time  to  time  that  the  supply  might  be  delayed,  and 
finally  refusing  to  accept  any  more ;  it  was  held  that  damages  might  be  given  for  the  whole 
quantity  remaining  on  hand,  though  consisting  in  part  of  quantities  which,  without  being  act- 
ually countermanded,  had,  by  desire  of  the  purchasers,  been  kept  back  at  the  times  aiijiointed 
for  delivery  ;  and  that  it  was  a  proper  direction  to  the  jury  to  give  such  damages  as  would 
leave  the  plaintifls  in  the  same  situation  as  if  the  defendants  had  fulfilled  their  contract.  Cort 
V.  The  Ambergate,  &c.  R.  P.  Co.  17  Q.  B.  127. 


316  SALES  OF  PERSONAL  PROPERTY.  [ciL  X. 

delivered,  until  the  credit  has  expired ;  but  he  can  sue  imme- 
diately for  a  breach  of  the  special  agreement.*  And  in  New 
York  it  has  been  held,  that  in  such  action,  he  will  be  entitled 
to  recover  as  damages  the  whole  value  of  the  goods,  with  the 
suggestion  that  there  should  be  a  rebate  of  interest  during 
the  stipulated  period  of  credit;  f  the  court,  Bronson,  J.,  saying, 
"  The  right  of  action  is  as  perfect  on  a  neglect  or  refusal  to  give 
the  bill  as  it  can  be  after  the  credit  has  expired.  The  only  dif- 
ference between  suing  at  one  time  or  the  other,  relates  to  the 
form  of  the  remedy.  In  the  one  case,  the  plaintiff  must  declare 
specially,  in  the  other  he  may  declare  generally.  The  remedy 
itself  is  the  same  in  both  cases.  The  damages  are  the  price  of 
the  goods.  The  party  cannot  have  two  actions  for  one  breach 
of  a  single  contract,  and  the  contract  is  no  more  broken  after 
the  credit  expires  than  it  was  the  moment  that  the  bill  or  note 
was  wrongfully  withheld." 

So  in  a  case  in  Pennsylvania,^  it  was  charged  at  the 
[284]  trial,  that  where  goods  are  sold  on  credit,  the  vendee  to 
give  his  note,  which  he  refuses  to  do  after  the  goods  are 
delivered,  suit  may  be  brought  for  a  breach  of  the  contract 
before  the  expiration  of  the  credit,  in  which  case  the  measure 
of  damages  is  the  price  of  the  goods.  It  was  insisted  that  the 
measure  of  damages  was  the  injury  actually  sustained  by  not 
receiving  any  security  for  the  goods.  But  the  direction  was 
held  right.  § 

Notice  of  Non-performance  by  Vendee  Ineffectual. —  An  ef- 
fort has  been  made  in  many  cases  by  the  purchaser  to  relieve 
himself  from  the  contract  of  sale  before  the  time  fixed  for  per- 

*  Mussen  y.  Price,  4  East,  147  ;  Dutton  v.  the  court  held  the  plaintiff  entitled  to  recover 

Solomonson,  3  Bos.  &  Pull.  582  ;  Hoskins  v.  the   full  amount   of  the  note,    saying,  "  The 

Duperoy,  9  East,  498  ;  Hutchinson  v.  Reid,  3  plaintiff  can  have  no  other  action  than  upon 

Camp.  329  ;  Loring    v.    Gurney,  5  Pick.  16  ;  this  special  contract;  and  it  is  very  obvious 

Hunneman  v.  Inhabitants  of  Grafton,  10  Met.  that  in  some  action  and  at  some  time,  he  is 

454.  entitled  to  recover  the  actual  damage  sustained, 

t  Hanna  v.  Mills,  21  Wend.  90.  In  the  one  hundred  dollars,  which  the  defendant  prom- 
English  cases  nothing  is  said  as  to  the  amount  ised  to  pay.  The  special  promise  of  the  de- 
which  the  plaintiff  is  entitled  to  recover.  In  fendant  to  give  his  note,  was  as  effectually 
the  case  of  Hutchinson  v.  Reid,  the  plaintiff,  broken  when  the  action  was  commenced,  as  it 
though  without  discussion,  was  pennitted  to  was  after  the  ex])iration  of  the  sixty  days ; 
take  a  verdict  for  the  price  of  the  goods.  and  if  the  plaintiff  recover  nominal  damages 

\  Rinehart    v.    Olwine,  5    Watts   &   Serg.  now,  we  do  not  see  but  he  will  be  debarred 

157.  from  a  recovery  of  his  actual  damages  hcre- 

§  In  a  somewhat  similar  case,  the  same  rule  after  ;  because,  if  he  sues  again,  he  can  only 

was  laid  down  in  Connecticut ;  the  defendant  sue  for  the  same  breach  of  promise,  in  the 

promised  the  plaintiff  to  give  a  note  immedi-  same  form  of  action,  and  in  the  same  manner 

atcly  for  one  hundred  dollars,  payable  in  sixty  of  declaring  as  he  is  now  doing.     The  second 

days.     On  refusal  to  give  the  note,  and  before  action  would  be  for  the  same  cause  of  action 

the   expiration   of  the   sixty   days,  suit  was  as  the  first,  and  must  so  ajjpear  to  be   from 

brought;  and  it  was  insisted  that  the  plaintiff  the  record  itself."     Stoddard  v.  Mix,  14  Conn. 

could  only  recover  nominal  damages.    But  12. 


CII.    X.]  DAMAGES    AS   AGAINST   VENDEE.  317 

formance,  by  giving  notice  that  he  would  not  ])e  ready  to  com- 
plete the  agreement;  and  in  these  cases  it  has  been  insisted 
that  the  damages  should  be  estimated  as  at  the  time  of  giving 
notice;  but  the  EngUsh  courts  have  justly  denied  the  right  of 
either  party  to  rescind  t\io  agreement,  and  have  adhered  to  the 
day  of  the  breach  as  the  period  for  estimating  the  damages. 

In  an  action  of  assumpsit  by  plaintiff  against  defendant  for 
not  accepting  a  quantity  of  wheat  which  the  plaintiff,  early  in 
January,  1839,  contracted  to  sell  to  the  defendant,  to  be  de- 
livered at  Birmingham,  as  soon  as  vessels  could  be  obtained 
for  the  carriage  thereof,  the  defendant  gave  notice,  on  the  26th 
of  January,  that  he  woidd  not  accept  the  wheat  if  delivered — 
wheat  having  then  fallen  in  price.  It  was  at  that  time  on  its 
way  to  Birmingham,  and  on  its  arrival  was  offered  to  the  defend- 
ant; but  he  refused  to  take  it.  On  the  trial,  it  was  contended 
that  the  measure  of  damages  was  the  difference  between  the 
contract  j^rice  and  the  price  on  the  26th  of  January, 
when  notice  was  given.  But  on  argument,  the  Ex-  [285] 
chequer  held  that  the  true,  rule  was  the  difierence 
between  the  contract  price  and  that  on  the  day  when  it  was 
oftered  at  Birmingham;  and  they  relied  on  the  case  of  Leigh  v. 
Patterson.* 

So  in  another  case,t  which  was  an  action  of  assumpsit  for 
not  accepting  certain  railway  shares,  the  contract  of  sale  was 
made  on  the  26th  of  August,  1840;  on  the  7th  of  September, 
the  defendant  refused  to  take  them.  On  the  15th  the  plaintiff 
resold  the  shares  at  a  loss  of  £161  from  the  price  agreed  on; 
and  the  jury,  under  the  charge  of  the  judge,  found  a  verdict  for 
this  amount.  The  defendant,  on  a  motion  for  a  new  trial,  in- 
sisted that  the  damages  should  have  been  calculated  only  to 
the  7th  of  September,  when  the  defendant  declared  off.  But 
Alderson,  B.,  said,  "The  damages  are  to  be  calculated  at  the 
difference  between  the  contract  price  and  the  price  to  be 
obtained  within  a  reasonable  time  after  the  breach  of  contract; 
and  it  was  for  the  jury  to  say  what  was  such  reasonable  time." 

So  where  a  person  had  contracted  for  a  certain  quantity  of 
oil,  it  was  held,  that  in  an  action  for  not  accepting  and  paying 
for  the  oil,  the  proper  measure  of  damages  was  the  difierence 
between  the  price  he  had  contracted  to  pay  for  the  oil,  and  the 
market  price  at  the  time  when  the  contract  was  broken.J 

*  riiilljiotts  V.  Evans,  5  Mees.  &  Wels.  R.        t  Stewart  v.  Cauty,  8  Mccs.  &  Wels.  E. 
475.     Ante,  277.  160. 

t  Boorman  v.  Nash,  9  Bar.  &  C.  145. 


318  SALES  OF  PERSONAL  PROPERTY.  [CH.  X. 

In  New  York  Foreign  Creditor  can  RECo\rER  only  Par  of  Ex- 
change.—  The  same  question  that  we  have  heretofore  discussed 
in  regard  to  notes  and  bills  of  exchange  when  made  in  one 
country  and  put  in  suit  in  another,  may  arise  in  regard  to  sales ; 
and  in  such  a  case  it  has  been  held  in  New  York,  that  when 
goods  have  been  purchased  in  England,  and  the  vendee  is  sued 
here  for  the  price,  the  creditor  can  recover  the  price  at  the 
par  of  exchange  only.* 

Corporate  Stock. — In  a  late  case,t  it  was  held  in  Massachu- 
setts, that  where  the  defendant  had  agreed  to  deliver  a  certifi- 
cate of  ten  shares  of  the  corporate  stock  of  a  certain  manufac- 
turing company,  whose  capital  was  to  be  one  hundred  thousand 
dollars,  divided  into  not  more  than  200  shares;  and  instead 
thereof  made  a  tender  of  a  certificate  of  ten  shares  of  the  stock 
of  the  company,  of  which  thirty-four  thousand  dollars  only  were 
paid,  divided  into  seventy  shares;  that  the  measure  of 
[286]  damages  w^as  the  value  of  ten  shares  in  the  full  capital 
stock,  if  it  had  been  made  up  at  the  time  stipulated,  and 
the  company  had  then  been  ready  in  good  faith  to  operate 
upon  the  capital,  pursuant  to  their  charter.-^ 

Warranties. — We  come  next  to  the  subject  of  warranties. 
The  contract  of  sale  may  be  comjolied  with  on  the  part  of  the 
vendor,  so  far  that  delivery  may  have  been  made,  but  the 
article  may  still  not  satisfy  the  warranties  either  express  or 
implied,  that  have  been  made  at  the  time  of  the  sale ;  and  in 
this  case,  the  rule  of  damages  is  now  to  be  investigated.  We 
for  the  present  assume  that  no  fraud  enters  into  the  transaction, 
inasmuch  as  in  that  case  we  shall  presently  see  different  rules 
apply,  and,  moreover,  it  transfers  the  subject  of  compensation 
in  a  great  degree  to  the  discretion  of  the  jury.^  It  will  be 
noticed  that,  in  one  branch  of  the  question  wdiich  we  now  pro- 
ceed to  examine,  the  rights  and  liabilities  of  the  parties  con- 
cerned are  often  identical  with  those  of  principal  and  surety; 
but  reserving  for  separate  inquiry  that  subject  in  its  more  ex- 
tended form,  we  shall  confine  ourselves  at  present  to  the  ex- 
amination of  warranties  as  contained  in  sales. 

*  Ante,  250.  t  Dyer  v.  Rich,  1  Met.  ISO. 

1  Struthers  v.  Clark,  30  Penn.  210. 

^  The  purchaser  of  a  vessel,  falsely  and  fraudulently  represented  by  the  seller  as  eighteen 
instead  of  twenty-eight  years  old,  having  sent  her  to  sea  before  he  had  knowledge  that  such 
representation  was  false,  and  the  vessel  being  afterwards  condemned  in  a  foreign  port,  it  was 
held  that  the  purchaser  was  entitled  to  recover  his  actual  damages  occasioned  by  sending  her 
to  sea,  not  exceeding  her  value.     Tuckwell  v.  Lambert,  5  Cush.  (Mass.)  23. 


en.   X.]  WARRANTIES.  319 

In  cases  of  executory  contracts,  or  contracts  to  deliver  a 
specific  article,  if  on  delivery  tliey  prove  not  to  .satisfy  the 
agreement,  the  plaintiff,  as  we  have  seen,  is  not  bound  to  re- 
tain the  articles,  but  he  may  return  them  within  a  reasonable 
time.*^  So  it  was  originally  held  in  regard  to  chattels  sold 
with  warranty,  that  if  they  did  not  answer  the  agreement,  the 
plaintiff  had  his  election  of  two  remedies:  he  might  either 
return  the  article  and  recover  the  price  paid;  or  he  might  sell 
the  article,  and  recover  damages  in  an  action  on  the  warranty.^ 

The  better  opinion,  however,  seems  now  to  be,  that  where 
there  is  no  fraud  and  no  agreement  to  return,  the  vendee  can- 
not, at  his  own  option,  rescind  the  contract,  but  has  only 
an  action  on  the  warranty.!  So  in  New  York,  it  has  been  [287] 
said  in  a  case  of  simple  warranty,  there  being  no  provis- 
ion in  the  contract  for  the  return  of  the  articles,  that  the  title 
to  the  property  becomes  vested  in  the  vendee  as  soon  as  de- 
livered, and  he  can  only  recover  for  the  difference  in  value 
between  it  as  it  is  in  fact,  and  as  it  ought  to  have  been.J  ^ 

Value,  not  Price,  governs  the  Compensation.  —  This  fluctua- 
tion of  judicial  opinion  has  produced  a  corresponding  variety  of 
decisions  as  to  the  measure  of  relief  It  seems  originally  to 
have  been  held,  that  the  measure  of  damages  in  these  cases  was 
the  difference  between  the  price  paid  and  the  actual  value ;  but 
it  is  now  well  settled,  that  the  rule  is  the  difference  between  the 

■*  Freeman  v.  Clute,  3  Barb.  S.  C.  R.  424.  Cr.  &  Mees.  207  ;  Pateshall  v.  Tranter,  3  Ad. 
t  In  Enohuid  the  cases  were  considered,  in  &  Ell.  103;  Thornton  v.  Wynn,  12  Wheat. 
Street  v.  Blay,  2  Barn.  &  Adol.  456  ;  and  183.  In  Maryland  the  right  of  rescission  is 
though  the  cause  was  not  decided  on  this  maintained.  Franklin  v.  Long,  7  Gill  &  J. 
ground,  strong  oiiinions  to  the  etiect  were  ex-  407.  In  Alabama,  fraud  and  breach  of  war- 
pressed.  See  also,  in  the  State  of  New  York,  ranty  are  still  held  to  give  an  equal  right  to 
Voorhees  v.  Earl,  2  Hill,  288.  So  in  Ver-  rescind.  So  the  oiier  to  return  in  a  reason- 
mont,  a  warranty  and  breach  of  it  will  only  able  time  after  the  breach  of  a  warranty  by 
entitle  the  vendee  to  recover  damages  for  the  the  vendor,  or  the  discovery  of  a  fraud 
breach,  and  not  authorize  liiui  to  rescind  and  practiced  by  him,  will  be  as  effectual  to  re- 
recover  lack  the  consideration  money.  West  scind  the  contract  as  if  the  offer  had  been 
v.  Cutting,  19  Verm.  536;  Thornton  w.  Wynn,  accepted.  Burnett  v.  Stanton,  3  A.  R.  (N. 
12  Wheat.  183.  As  to  the  difference  taken  S.)  181.  In  Pennsylvania,  also,  ante,  284. 
between  sales  with  warranty,  and  executory  See  also,  infra,  as  to  right  of  rescission  in 
contracts  where  the  chattels  may  generally  be  cases  of  fraud. 

returned  as  soon  as  they  are  found  not  to  sat-        t  Freeman  v.  Clute,  3  Barb.  S.  C.  R.  424. 
isfy  the  contract,  see  Gompcrtz  v.  Denton,  1 

1  If  the  article  is  returned,  the  vendee  may  recover  the  price  paid  with  interest  from  the  time 
it  was  returned.  Kuntzman  v.  Weaver,  2  Penn.  St.  422.  And  in  an  action  for  breach  of  war- 
ranty of  soundness  of  a  slave  who  has  died,  the  measure  of  damages  is  the  price  paid  and  in- 
terest, and,  if  the  vendee  offered  to  return  the  slave  and  the  offer  was  refused,  the  subsequent 
expenses  of  his  keeping.     Scrauton  v.  Tilley,  16  Tex.  183. 

'■^  So  held  in  the  Special  Court  of  Appeals  of  Virginia.  Graham  v.  Bardin,  1  Patt.  &  H. 
206. 

3  Prentice  v.  Dike,  6  Duer,  220  ;  Pritchard  v.  Fox,  4  Jones  (N.  C.)  L.  140 ;  and  compare 
Davis  V.  Dickey,  23  Ala.  848 ;  Foster  v.  Baer,  7  La.  Ann.  613. 


-L 


320  SALES  OF  PERSONAL  PROPERTY.  [CH.  X. 

actual  value  and  the  value  that  the  article  would  have  possessed 
if  it  had  conformed  to  the  warranty/  the  price  paid  being  mere 
evidence  of  that  value. 

English  Cases.  —  In  an  early  case,*  Mr.  J.  Buller,  discussing 
the  question  wdiether  money  had  and  received  would  lie  on  an 
executed  contract,  said,  "  In  a  late  case  before  me,  on  a  war- 
ranty of  a  pair  of  horses  to  Dr.  Compton,  that  tliey  were  five 
years  old  when  in  fact  they  turned  out  to  be  only  four,  I  held 
that,  as  the  'plaintiff  had  not  rescinded  the  contract,  he  could  only  re- 
cover damages  \  and  then  the  question  was,  what  was  the  differ- 
ence of  the  value  of  horses  of  four  or  five  years  old." 

3       *  Towers  v.  Barrett,  1  Term  Rep.  133  (1786). 

1  Keggio  V.  Braggiotti,  7  Cush.  (Mass.)  166  ;  Tuttle  v.  Brown,  4  Gray  (Mass.),  457;  Foster 
V.  Rodgcrs,  27  Ala.  602 ;  McGavock  v.  Wood,  1  Sneed  (Tunn.),  181  ;  VVorthy  v.  Patterson,  20 
Ala.  172;  Sharon  v.  Mosher,  17  Barb.  (N.  Y.)  518;  Stearns  v.  MeCullogh,  18  Mo.  411; 
Andree  Smith  v.  Steinkampler,  16  Ibid.  150;  Verdier  v.  Trowell,  6  Rich.  (S.  C.)  L.  166; 
Lane,  Adm'x,  v.  Lantz,  27  Md.  211  ;  also  Foster  v.  Rodgers,  27  Ala.  602,  where  the  ditterence 
between  the  actual  value  and  the  value  if  sound,  with  interest,  was  held  to  be  the  rule.  See 
also,  Fales  v.  McKeon,  2  Hilt.  (N.  Y.)  53;  Lacey  v.  Straughan,  11  Iowa,  258;  Smith?;. 
Cozart,  2  Head  (Tenn.),  526;  Tuttle  v.  Brown,  4  Gray  (Mass.),  257;  Whitmore  v.  South 
Boston  Iron  Co.  2  Allen  (Mass.),  52;  Carr  v.  Moore,  41  N.  H.  131.  It  was  held  erroneous, 
therefore,  in  an  action  on  a  note  given  for  the  price  of  a  female  slave,  for  the  court  to  charge 
the  jury  that  although  they  should  find  the  covenant  to  have  been  broken,  if  at  the  time  of  the 
sale,  the  slave  in  her  unsound  state  was  worth  the  price  for  which  she  was  sold,  the  defendant 
had  sustained  no  damage.  Hook  v.  Stovall,  26  Geo.  704.  Nor  is  the  rule  affected  by  proof 
that  the  purchaser  afterwards  sold  the  pi'opcrty  for  as  much  as  and  more  than  he  paid  for  it. 
If  such  evidence  is  competent,  it  ought  to  appear  afhrmatively  that  such  resale  was  made  by 
the  original  vendee  on  such  terms  as  would  preclude  him  from  any  loss  by  reason  of  the  breach 
of  warranty  by  the  original  vendor.  Brown  v.  Bigelow,  10  Allen,  242.  But,  as  we  shall  see, 
the  rule  is  sometimes  broader  than  is  here  stated  in  the  text.  (Post,  292,  note  1.)  And  it 
seems  that  damages  sustained  by  a  dealer  from  selling  goods  with  a  warranty  in  reliance  on 
his  vendee's  warranty,  can  be  recovered  from  his  vendor.  It  is  intimated  by  the  English 
Court  of  Common  Pleas  that  they  are  not  too  remote.  Dingle  v.  Hare,  7  C.  B.  (N.  S.)  145 ; 
1  Law  T.  R.  (N.  S.)  38. 

But  if  the  property  is  not  valueless,  and  the  purchaser  does  not  rescind  on  discovering  the 
fraud,  and  if  having  an  opportunity  to  return  the  property  he  does  not  do  so,  he  cannot 
recover  its  entire  value,  although  it  becomes  lost  to  him,  through  a  fault  warranted  against. 
So  held  in  Alabama  in  the  case  of  a  slave  running  away,  who  had  been  warranted  by  the  ven- 
dor to  have  an  "  excellent  character,"  which  was  regarded  as  incompatible  with  a  habit  the 
slave  had  of  running  away.  Ward  v.  Reynolds,  32  Ala.  384.  And  a  custom  to  substitute 
another  article  in  lieu  of  the  one  as  to  which  the  warranty  is  broken,  is  invalid  and  does  not 
vary  the  rule  of  damages.  Johnson  v.  Gilfillan,  8  Wis.  395.  See  Van  Deusen  v.  Young,  29 
N.  Y.  37. 

The  defendant  sold  plaintiff  a  quantity  of  apples  to  be  delivered  at  Barre  in  New  York. 
At  the  time  of  the  sale  it  was  agreed,  that  the  apples  were  to  be  "  good  ingrafted  winter- 
fruit,"  and  it  was  understood  that  they  were  intended  tb  be  put  up  for  the  Canada  market. 
They  were  accordingly  delivered  to  the  plaintiff  at  Barre,  and  he  took  them  to  Toronto, 
Canada,  where  the  barrels  were  opened,  and  some  of  the  apples  found  to  be  damaged.  Held, 
in  an  action  for  breach  of  warranty,  that  the  true  measure  of  damages  was  not  the  difference 
between  the  real  value  of  the  apples,  as  they  proved  to  be,  and  the  price  of  good  merchantable 
fruit  in  the  Canada  market,  deducting  the  price  of  transportation  to  that  place,  but  the  differ- 
ence in  value  between  a  sound  and  the  unsound  article  at  the  place  of  delivery ;  and  that  the 
plaintiff  was  not  entitled  to  recover  anything  on  the  ground  of  a  loss  of  profits.  If  the  apples 
had  been  wholly  lost  in  consequence  of  the  fault  of  the  vendor,  the  vendee  might  recover  the 
expenses  of  transportation  to  the  contemplated  market,  in  addition  to  the  price  paid  for  the 
fruit.  But  he  could  in  no  event  go  beyond  that,  and  recover  anything  on  the  ground  of  a  loss 
of  profits.  New  York  Supreme  Court,  1842;  Lattiu  v.  Davis,  Hill  &  D.  Supp.  9.  But  see 
infra,  293,  note. 


CH.    X.]  WARRANTIES.  321 

In  a  subsequent  case,*  it  was  insisted  that  the  plaintiff  should 
have  returned  the  animal  which  had  been  warranted  sound. 
[But  it  was  held  by  all  the  judges  that  neither  such  return,  nor 
notice  of  the  unsoundness,  was  necessary  to  enable  the  plaintiff 
to  maintain  his  action  for  the  damages  sustained.]  In  another 
case,t  an  action  being  brought  on  the  warranty  of  a  horse  sold 
by  the  defendant  to  the  plaintiff  for  £20,  the  warranty  and  the 
unsoundness  being  proved,  the  jury  was  directed  that  if  the 
horse  was  kept,  the  verdict  ought  to  he  for  the  difference  he- 
tioeen  the  value  and  the  price  paid.  The  jury,  however,  con-  [288] 
trary  to  this  direction,  found  for  the  plaintiff  <£30  IO5. ; 
£20  for  the  horse,  and  10  guineas  for  its  keep.  The  defendant 
moved  for  a  new  trial ;  and  the  verdict  was  reduced  to  £20,  the 
plaintiff  undertaking  to  deliver  back  the  horse,  free  of  any  ex- 
peme  for  its  keep. 
\^  The  rule  of  damages  here  laid  down,  is  the  difference  between 
the  sum  paid  and  the  actual  value  of  the  chattel,  as  proved  to  be 
deteriorated  by  the  defect  warranted  against;  but  as  I  have 
already  said,  this  is  no  longer  the  law.  In  another  case,t  in  an 
action  of  assumpsit  on  a  warranty  of  soundness  in  a  horse.  Lord 
Eldon  spoke  of  the  difference  between  the  value  of  the  article 
warranted  and  its  actual  value  when  sold,  as  the  measure  of 
damages ;  but  the  case  did  not  turn  on  this  point.  Recently, 
however,  the  precise  subject  has  been  considered,  and  this  rule 
finally  adopted. 

It  was  also  an  action  brought  for  the  breach  of  a  warranty.§ 
The  plaintiff  had  bought  a  horse  of  the  defendant  for  £45,  war- 
ranted sound.  The  plaintiff'  had  sold  the  horse  with  warranty 
to  one  Collins  for  £55;  Collins  returned  the  horse  as  unsound; 
and  the  plaintiff  was  obliged  to  repay  the  £55,  and  the  animal 
was  sold  for  £17  15^.  The  plaintiff  claimed  the  difference  be- 
tween that  sum  and  £45,  the  price  paid ;  the  expense  of  bring- 
ing the  horse  to  London ;  his  keep  from  the  time  of  purchase 
to  the  sale  as  unsound;  the  £10  paid  to  Collins;  £1  156-.  for 
an  examination  at  the  veterinary  college  ;  and  £1  15^.  for  opin- 
ion of  counsel.  Lord  Denman,  C.  J.,  at  the  trial  of  the  cause 
said,  "  As  the  warranty  and  the  unsoundness  are  admitted  on 
the  record,  the  only  question  is  the  amount  of  damages.  I  am 
of  opinion  that  the  amount  of  damages  is  what  the  horse  would 
be  ivorth  if  sound,  deducting  the  price  it  sold  for  after  the  discov- 
ery of  the  unsoundness ;  and  I  think  the  price  at  which  it  was 

*  Fielder  v.  Starkin,  1  H.  Bl.  17  (1788).  §  Clare  v.  Maynard,  7  Car.  &  Payne,  741 

t  Caswell  V.  Coare,  1  Taunt.  .566  (1809).  (1837). 

X  Curtis  V.  Hanuay,  3  Esp.  82  (1800). 
21 


322  SALES  OF  PERSONAL  PROPERTY.  [CH.  X. 

sold  to  the  plaintiff  is  not  conclusive  as  to  its  value,  though  I  think 
it  very  strong  evidence.  The  fair  value  of  the  horse,  if  sound, 
is  the  measure  of  damages  ;  and  the  sum  the  plaintiff  gave  is 
only  the  evidence  of  the  value."  He  refused  to  allow  the  <£10 
paid  Collins,  because  there  was  no  evidence  that  the  horse  was 

worth  more  than  the  plaintiff  gave  for  it.  The  expense 
[289]  of  bringing  the  horse  to  London,  and  of  keeping  him 

there,  was  also  allowed.  The  court  was  moved  for  a  new 
trial  as  to  the  £10  paid  Collins;  but  they  refused  to  disturb  the 
verdict,  saying  that  this  claim  in  substance  amounted  to  a  claim 
of  compensation  for  the  loss  of  a  good  bargain,  which  could  not 
be  allowed  as  damages  in  such  an  action.*  ^ 

In  addition  to  the  remuneration  thus  given,  the  plaintiff  is 
entitled  to  recover  the  expenses  of  keeping  the  animal  for  such 
a  reasonable  time  as  may  be  necessary  to  sell  him  to  the  best 
advantage.!  Mr.  J.  Littledale  said,  in  the  case  first  cited,  "  a 
contrary  doctrine  very  generally  prevailed,  but  he  thought  the 
plaintiff  was  entitled  to  recover  the  expenses  of  keeping  for  so 
long  a  time  as  might  reasonably  be  occupied  in  endeavoring  to 
sell  the  horse  to  the  best  advantage." 

American  Cases.  —  The  principle  that  it  is  the  value  and  not 
the  price  which  governs  the  compensation,  has  been  recognized 
by  the  courts  of  this  country.  In  a  case  in  New  York,t  assump- 
sit was  brought  on  a  warranty  that  120  barrels  of  Hour  were 
superfine  flour,  of  good  quality.  The  price  paid  was  $9.50  per 
barrel ;  60  barrels  were  defective.  The  defendant's  counsel  in- 
sisted that  the  measure  of  damages  was  the  difference  in  value 
between  the  60  barrels  when  sold,  and  the  value  of  superfine 
flour;  but  Willard,  C.  J.  held  at  the  trial,  that  the  plaintiffs 
were  entitled  to  recover  back  the  balance  of  the  whole  purchase- 
money  paid  for  the  60  barrels,  with  interest,  crediting  the 
amount  realized  by  them  from  their  sale  at  auction.  On  a  mo- 
tion for  a  new  trial,  Cowen,  J.,  said,  "  Regarding  this  case  as 
one  of  simple  warranty  without  fraud,  the  measure  of  damages 
adopted  at  the  trial  was  wrong.  It  should  have  been  the  differ- 
ence between  the  value  of  the  sixty  harrels  at  the  time  of  the  sale, 

*  From  the  report  of  this  case  in  the  King's  adequate  allcoation.  See  also,  Cox  v.  Walker, 

Bench,  6  Adol.  &  Ellis,  519,  it  appears  that  a  in  notes  to  this  case. 

question  arose  as  to  the  sufficiency  of  the  dec-  t  M'Kenzie   v.  Hancock,  Ryan    &   Moody, 

laration.     The  plaintiff  insisted  that  the  £10  436(1826);  Chesterman  v.  L.amb,  2  Adol.  & 

should  be  allowed  as  expenses,  if  not  as  profit.  Ellis,  129  (1834);    and  Ellis  v.   Chinnock,  7 

But  to  cover  this,  the  court  said  there  was  no  Car.  &  Payne,  169  (1835). 

t  Voorhees  v.  Earl,  2  Hill,  288. 

1  Muller  V.  Eno,  14  N.  Y.  597  ;  Burton  v.  Young,  5  Harring.  (Del.)  233. 


CII.    X.]  WARRANTIES.  323 

considered  as  good  superfine  flour,  and  the  value  of  the  inferior 
article  sold.     The  purchaser  is  entitled  to  have  the  article  made 
equal  in  quality  to  what  the  warranty  assured  it  to  be." 
A  new  trial  was  granted.  [290] 

The  question  has  been  still  more  distinctly  decided  by 
the  same  court  in  another  case.*  ^  Gruman  sued  Gary  on  a 
warranty  of  soundness  in  a  horse;  the  price  paid  was  $90,  and 
the  breach  was  a  disease  of  the  eyes.  The  defendant  insisted 
that  the  proper  measure  of  damages  was  the  difference  between 
the  real  vidue  of  the  horse,  if  sound,  and  his  value  with  the  de- 
fect complained  of  The  court  below,  however,  decided  that  the 
measure  of  damages  was  the  difference  between  the  price  paid 
and  the  value  with  the  defect.  A  verdict  being  found  in  con- 
formity to  this  charge,  on  exception  and  writ  of  error,  it  was 
said  by  the  Supreme  Gourt, — 

"The  court  below  erred  in  laying  down  the  rule  of  damages.  The  warranty 
cannot  be  satisfied,  except  by  paying  to  the  vendee  such  sum  as,  together  with 
the  cash  value  of  the  defective  article,  shall  amount  to  what  it  would  have  been 

worth  if  the  defect  had  not  existed The  rule,  undoubtedly,  is,  that  the 

agreed  price  is  strong  evidence  of  the  actual  value  ;  and  this  should  never  be 
departed  from  unless  it  be  clear  that  such  value  was  more  or  less  than  the  sum  at 

which  the  parties  fixed  it It  is  impossible  to  say,  nor  have  we  the  right 

to  inquire,  whether  the  real  value  of  the  horse  in  question,  supposing  him  to  have 
been  sound,  would  have  turned  out  to  be  more  or  less  than  the  $90  paid.  Sup- 
pose the  ']\\rj  thought,  with  one  witness  whom  the  court  allowed  to  state  such 
value  for  another  purpose,  that  it  was  not  more  than  $80,  the  plaintiff"  then  re- 
covered ten  dollars,  not  on  account  of  the  defect,  but  because  he  had  been  defi- 
cient in  care  or  sound  judgment  as  a  purchaser.  On  the  other  hand,  had  the 
horse  been  actually  worth  $100,  the  defendant  would  have  been  relieved  from 
the  payment  of  the  ten  dollars,  because  he  had  made  a  mistake  of  value  against 
himself.  The  cause  might  thus  have  turned  on  a  question  entirely  collateral  to 
the  truth  of  the  warranty."     And  a  new  trial  was  granted. 

And  so  the  law  has  been  recently  declared  in  Vermont ;  f  and 
in  Alabama ;  t  in  Virginia  also  ;  §  and  so  in  Louisiana.  ||  ^  _/- 

*  Gary  t;.  Gruman,  4  Hill,  625  (1843),  per  in  the  condition  in  which  he  really  was.     And 

Cowen,  J.  the  price  at  which  the  animal  was  sold  is  the 

t  Woodward  v.  Thacher,  21  Vt.  580.  proper  evidence  of  value  he  would  have  had 

J  Marshall  v.  Wood,  16  Ala.  806.  at   that   time,  if  he  had   been   sound  to   the 

§  On  a  warranty  of  soundness  in  an  animal,  extent  of  the  warranty.    Thornton  v.  Thomp- 

the  measure  of  damage  is  the  difference  be-  son,  4  Grattan,  121. 

twcen  the  value  of  the  animal  sound  as  war-         ||  Slaughter  v.  M'Rae,  3  La.  Ann.  R.  455. 

ranted,  and  his  value  at  the  time  of  the  sale, 

— .^^ — 

1  And  see  Comstock  v.  Hutchinson,  10  Barb.  (N.  Y.)  211. 

2  In  Illinois  the  old  rule  laid  down  in  Caswell  v.  Coare,  1  Taunt.  566,  ante  288,  making  the 
difference  between  the  price  paid  and  the  value  of  the  thing  with  the  defect,  has  been  adopted, 


324  SALES  OF  PERSONAL  PROPERTY.  [CH.  X. 

Result  of  Authorities.  —  From  these  cases  the  result  is,  that 
in  an  action  brought  on  a  warranty,  the  true  measure  of 
[291]  damages  is  the  dilference  between  the  vahie  which  the 
thino;  sold  would  have  had  at  the  time  of  the  sale,  if  it 
had  been  sound  or  corresponding  to  the  warranty,  and  its  actual 
value  with  the  defect ;  that  the  price  is  very  strong  but  not  con- 
clusive evidence  of  the  value  at  the  period  first  named  ;  and 
that  the  plaintiff  is  entitled  to  recover  his  expenses  for  keeping 
the  article  during  such  time  as  is  reasonable  for  its  advanta- 
geous sale.^  Mr.  Chancellor  Kent  *  seems  to  prefer  the  rule  as 
laid  down  in  Curtis  v.  Hannay,  cited  above,  on  the  ground  of  its 
being  in  harmony  with  the  measure  of  damages  on  the  cove- 
nant of  warranty  in  the  sale  of  land.  But  it  is  proper  to  notice 
that  the  doctrine  settled  is  in  analogy  to  the  principle  in  another 
class  of  cases.  It  has  been  laid  down  as  a  general  rule,t  in  re- 
gard to  actions  for  non-performance  of  contracts  (other  than 
conveyances  of  lands),  that  the  party  ready  to  perform  may  re- 
cover damages  to  the  extent  of  his  injury,^  and  that  the  price 
agreed  to  be  paid  on  actual  performance  is  not  the  measure  of 
damages.  This  also  seems  the  rule  in  Pennsylvania,  where  in 
the  case  of  sale  by  sample,  in  an  action  on  the  implied  represen- 
tation or  warranty,  the  measure  is  held  to  be  the  difference  be- 
tween the  value  of  the  articles  delivered  and  the  commodity 
sold.  X  ^    The  rule  which  we  have  been  considering  does  not  at 

*  Com.  vol.  ii.  p.  480,  in  notes.  %  Borrekin  v.  Bevans,  3  Rawle,  23. 

t  Shannon  v.  Comstock,  21  Wendell,  457. 

and  seems  after  some  hesitation  to  be  adhered  to.  Morgan  v.  Ryerson,  20  111.  343  ;  Crabtree 
V.  Kile,  21  111.  180  ;  Wallace  i'.  Wren,  32  111.  146.  Bnt  where  the  consideration  is  not  a  fixed 
price,  as  where  one  horse  is  exchanged  for  another,  the  rule  is  the  dift'erence  between  the  sound 
and  unsound  value.     Ibid. 

The  court  proceed  upon  the  ground  that  when  the  price  paid  is  more  or  less  than  the  sound 
value,  the  party  having  the  best  of  the  bargain  ought  not  to  be  deprived  of  the  benetit  of  it. 
If  the  purchaser  agreed  to  pay  an  extravagant  price,  there  is  no  reason,  as  the  court  considers, 
in  the  absence  of  fraud  in  the  seller,  why  he  should  not  be  held  to  it,  nor  if  a  low  one,  why 
he  should  lose  the  advantage  of  his  shrewd  bargain. 

In  the  earlier  case  of  Woodworth  v.  Woodburn,  20  111.  184,  the  rule  in  the  text,  making  the 
value  as  warranted  instead  of  the  price  agreed,  the  standard  by  the  departures  from  which  the 
damages  are  measured,  is  assumed  to  be  right,  though  the  decision  is  placed  on  another  point. 
(This  case,  it  may  be  observed,  was  decided  at  the  same  term  of  the  court  (April  1858)  with 
that  of  Morgan  v.  Ryerson,  above  cited.) 

1  The  price  realized  on  a  second  sale  is  admissible  as  one  mode  of  determining  the  value. 
Eeggio  V.  Braggiotti,  7  Cush.  (Mass.)  166  ;  Foster  v.  Rodgers,  27  Ala.  602. 

^  Feagin  v.  Beasley,  23  Geo.  17.  Interest  on  the  dirt'erence  in  value  up  to  the  time  of  trial 
is  allowed  in  Alabama.  Buford  v.  Goukl,  35  Ala.  (N.  S.)  265.  In  a  suit  on  the  warranty  of 
a  slave,  liis  reasonable  medical  and  other  expenses,  sustained  by  reason  of  the  unsoundness 
warranted  against,  may  be  included  in  the  damages  ;  F'eagin  v.  Beasley,  siqwa ;  Stone  v. 
Watson,  1  Ala.  Select  Cases,  236  ;  Buford  v.  Gould,  supra ;  see  Holloway  v.  Gotten,  33  Ala. 
(N.  S.)  529;  Perrine  v.  Serrell,  1  Vroom  (N.  J.),  454;  with  interest  from  the  time  of  pay- 
ment. Roberts  v.  F^leming,  31  Ala.  683.  Nor  in  Alabama  does  the  right  of  their  recovery 
de])end  on  tlie  fact  of  their  payment.  It  is  enough  that  they  have  been  fairly  incurred.  Kelly 
V.  Cunningham,  36  Ala.  (N.  S.)  78. 

8  See  Roberts  v.  Carter,  28  Barb.  462. 


CH.    X.]  WARRANTIES.  325 

all  apply  where  fraud  intervenes.  In  such  case,  as  we  shall 
presently  more  fully  see,  the  contract  can  be  rescinded,  the 
thing  returned,  and  the  price  paid  recovered  back,  or  the  party 
defriuided  may  stand  to  the  bargain  and  recover  damages  for 
the  fraud.*  ^ 

Warr^vnty  of  Quantity.  —  There  is  sometimes  a  warranty  of 
quantity,  either  expressed  or  implied  ;  and  in  that  case  the  pur- 
chaser is  entitled  to  have  the  article  made  equal  in  quantity  to 
what  the  warranty  declared  it  to  be,  but  not  to  be  remunerated 
for  injury  remotely  resulting  from  the  deficiency.! 

Consequential  Damages  for  Breach  of  Warranty.  —  The 
rights  of  the  parties  in  a  case  of  warranty  are  not,  however, 
always  presented  in  the  simple  form  that  we  have  just  been 
considering.  The  vendee  in  some  instances,  confiding  in 
the  warranty,  is  subjected  to  indirect  or  consequential  [292] 
loss.^  And  the  recovery  of  such  consequential  loss  will 
depend  on  the  general  principles  which  we  have  heretofore  ex- 
amined.^   So  where  a  slave  was  sold  with  warranty  of  soundness, 

*  Campbell  v.  Fleming,   1    Ad.  &  El.  40 :     doctrine  is  considered  at  length  in  a  learned 
2  Kent  Com.  480 ;  Voorhees  v.  Earl,  2  Hill,     note. 

288 ;  Putnam  v.  Wise,  1  Hill,  234,  where  the         t  Voorhees  v.  Earl,  2  Hill,  288 ;  Hargous 

V.  Ablon,  3  Denio,  406. 


1  Sharon  v.  Mosher,  17  Barb.  (N.  Y".)  518. 

2  In  such  cases  the  damages  should  make  good  besides  the  defect  in  the  thing  itself  such 
additional  injury  as  is  the  direct  consequence  of  the  seller's  breach.  Wintz  v.  Morrison,  17 
Tex.  372 ;  post,  295,  note  2 ;  Rose  v.  Wallace,  11  Ind.  112. 

So  in  an  action  for  breach  of  a  contract  to  construct  and  set  up  within  a  specified  time 
engines  on  a  steamboat  of  a  stipulated  quality  and  power ;  where  it  proved  that  the  engines 
were  not  delivered  within  the  time  fixed  by  the  contract,  and  did  not  conform  to  it,  the 
measure  of  the  plaintitl"s  damages  was  held  to  be  the  difterence  between  the  machinery 
furnished  and  that  called  for  by  the  contract,  together  with  expenses  actually  incurred  bj-  the 
plaintiff  as  a  consequence  of  the  breach,  which  would  include  the  wages  of  the  officers  and 
crew  while  they  remained  idle  during  the  delay  in  furnishing  the  machinery,  and  such  reason- 
able further  time  as  was  consumed  in  testing  and  repairing  it,  or  procuring  other  machinery 
instead,  to  which  might  be  added  interest.  Fisk  v.  Tank,  12  Wis.  276.  See  cases  cited  infra, 
293,  note  1. 

^  One  had  sold  another  for  the  price  of  good  pork,  well  packed  in  good  barrels,  a  quantity 
of  pork  in  barrels  with  a  warranty  that  the  barrels  would  not  leak.  After  the  barrels  had 
been  properly  stowed  by  the  vendee  he  found  that  a  part  of  them  were  leaky,  and  the  brine 
had  in  consequence  escaped.  He  thereupon,  under  the  advice  of  some  experts  in  the  article, 
filled  up  the  barrels  with  new  brine,  in  good  faith,  intending  and  expecting  thereby  to  preserve 
the  pork,  but  the  barrels  continuing  to  leak,  a  portion  of  them  were  either  wholly  spoiled 
or  deteriorated  to  an  extent  exceeding  tlie  balance  due  for  the  pork.  The  vendee  did  not 
notify  the  vendor  of  the  leaking  of  the  barrels,  nor  offer  to  return  the  imperiled  pork,  nor  did 
he  repack  the  pork  in  new  barrels,  which  it  appeared  it  was  customary  and  necessary  to  do 
after  the  expedient  of  refilling  the  old  barrels  with  new  brine,  in  violation  of  Scriptural 
warning,  was  proved  not  to  suffice.  Whether  the  vendee  in  fact  knew  of  this  custom  or 
necessity  did  not  appear.  Both  parties  were  free  from  fraud.  In  an  action  by  the  vendor  for 
the  unpaid  balance  of  the  purchase-money,  it  was  held  that  the  vendee  was  entitled  to  no 
deduction  on  account  of  the  loss  of  the  pork,  but  only  to  what  it  would  have  cost  to  procure 
new  barrels  in  lieu  of  the  old  ones  and  repack  the  pork  therein.  Hitchcock  v.  Hunt,  28  CoTm. 
343. 


325  SALES  OF  PERSONAL  PROPERTY.  [CH.  X. 

and  two  months  afterwards  he  received  a  gun-shot  wound  and 
died,  and  it  was  j)i'oved  that  he  had  labored  under  a  chronic 
affection  of  the  kings  at  the  time  of  the  sale,  and  but  for  that 
disease  the  wound  would  not  have  proved  mortal ;  it  was  held, 
notwithstanding,  that  the  vendor  was  liable  only  for  the  diminu- 
tion of  his  value  at  the  time  of  the  sale  in  consequence  of  the 
disease,  and  not  for  the  combined  consequences  of  the  wound 
and  the  disease.* 

Expenses  of  Litigation.  —  But  the  vendor  may  be  liable  for 
the  expenses  of  litigation  incurred  in  consequence  of  his  war- 
ranty. It  seems  when  the  chattel  has  been  sold  a  second  time 
by  the  vendee,  relying  on  the  original  warranty,  and  he  is  pros- 
ecuted by  the  second  vendee,  and  recovery  had,  the  first  vendor, 
if  duly  notified  of  the  claim,  and  it  is  not  unnecessarily  resisted, 
is  liable  for  the  whole  amount  of  the  damages  and  costs  re- 
covered against  the  first  vendee  by  the  second  vendee,  as  well 
as  his  costs  of  defense.^  So  in  an  action  on  the  warranty  of  a 
horse,  the  defendant  had  sold  the  horse  to  the  plaintiff  with 
warranty,  and  the  plaintiff  had  resold  with  warranty  to  one 
Dowling.  Dowling  sued  the  plaintiff,  and  recovered  the  price 
of  the  horse  with  £88  costs.  The  plaintiff  had  given  the  de- 
fendant notice  of  Dowlino;'s  action.  This  action  was  brouarht 
for  the  price  of  the  horse  and  the  costs,  and  the  plaintiff  had  a 
verdict  for  the  whole  amount.  On  a  motion  for  a  new  trial, 
and  to  set  aside  the  verdict  as  to  the  costs  of  Dowling's  action, 
it  was  urged  that,  if  the  horse  was  unsound,  the  plaintiff  had 
incurred  this  expense  needlessly,  and  in  his  own  wrong.  But 
the  rule  was  refused,  the  court  saying,  "  That  as  the  plaintiff  re- 
ceived no  directions  from  the  defendant  to  give  up  the  cause, 
the  costs  were  a  part  of  the  damages  which  the  plaintiff  had 
sustained."  f  ^ 

*  Marshall  v.  Gantt,  15  Ala.  682.  horse,  that  it  was  not  sound,"  the  court  said 
t  Lewis  V.  Peake,  7  Taunt.  152  ;  but  it  has  that  the  defense  was  a  rash  one,  and  the  plain- 
been  since  held  that  notice  is  not  conclusive,  tiff  not  entitled  to  charge  the  defendant  "with 
The  same  question  was  ])resented  in  Wright  the  costs  of  such  improvident  defense."  And 
V.  Chamberlain,  7  Scott,  598,  and  it  "  being  in  Penley  v.  Watts,  7  Mees.  &  Wels.  609,  this 
found  that  the  plaintiff,  before  he  defended  the  case  is  spoken  of  as  reconsidering  that  of 
action  brought  against  him,  might  have  ascer-  Lewis  v.  Peake. 
tained,  by  a  reasonable  examination  of   the 

1  So  Marlatt  v.  Clary,  20  Ark.  251. 

^  If  the  vendee  of  a  chattel  under  warranty  has  sold  it  with  a  like  warranty,  and  judgment 
has  been  recovered  against  him  for  breach  of  the  warranty,  he  may,  if  he  gave  notice  to  his 
vendor  of  the  action  against  himself,  recover  his  taxable  costs  incurred  in  the  action,  as  part 
of  his  damages  under  the  original  warranty ;  but  he  cannot  recover  counsel  fees.  Reggio  v. 
Braggiotti,  7  Cush.  (Mass.)  R.  166;  to  the  same  effect  is  Jeter  v.  Glenn,  9  Rich.  (S.  C)  Law, 
374. 


CH.   X.]  WARRANTIES.  327 

We  shall  see  when  we  come  to  examine  the  subject  of  [293] 
principal  and  surety  in  its  more  extended  aspect,  that  it 
has  been  frequently  held  that  the  party,  though  holding  a  war- 
ranty, defends  the  suit  at  his  peril,  and  that  if  it  appear  to  have 
been  unnecessarily  defended,  the  expense  will  be  charged  on 
him.^  The  only  effect  of  notice  is  to  shift  the  burden  of  proof. 
If  no  notice  be  given,  the  warrantee  will  be  held  to  proof  of  the 
propriety  of  the  litigation.  If  such  notice  has  been  given,  the 
original  warrantor  will  be  obliged  to  prove  that  the  expense 
was  unnecessarily  incurred. 

Where  the  defendants  had  sold  the  plaintiff  a  picture,  war- 
ranted to  be  painted  by  Claude,  but  in  fact  not  painted  by  him; 
and  the  plaintiff  sold  it  to  a  third  party  wdtli  like  warranty  ;  and 
the  second  vendee  sued  the  plaintiff  on  the  warranty,  and  re- 
covered damages  and  costs,  —  it  was  held  that  if  the  sale  was  a 
bond  fide  sale,  the  plaintiff  could  recover  the  costs  paid  the  sub- 
vendee,  and  all  the  costs  of  his  own  defense ;  nothing  is  said  in 
the  case  of  notice  or  the  propriety  of  the  litigation.*  ^ 

*  Penuell  v.  Woodburn,  7  Car.  &  P.  117. 

1  So,  -u-here  one  Davis  profussing  in  good  faith  to  have  authority  to  let  certain  premises,  but 
having  no  authority  in  fact,  made  a  parol  lease  of  them  for  seven  j'cars,  and  the  lessee  was 
dispossessed  by  the  owners,  in  an  action  of  ejectment  which  he  defended  relying  on  the 
authority  of  Davis  and  on  his  own  attorney's  advice,  it  was,  in  an  action  by  the  lessee  against 
the  professed  agent,  held  by  the  Court  of  Queen's  Bench,  that  he  could  recover  the  expense  of 
certain  repairs  he  had  jnit  on  the  premises,  but  not  of  the  defense  of  the  ejectment  suit,  since 
that  could  not  have  been  defended,  if  the  agent  had  possessed  authority,  the  parol  lease  being 
void.  The  attorne3''s  bad  advice  did  not  make  the  defendant  liable.  Pow  v.  Davis,  1  B.  & 
S.  220  ;  4  L.  T.  R.  (N.  S.)  399.     See  ante,  78,  note  1. 

'■'  Whether  the  warranty  of  a  vendor  can  be  carried  by  intendment  of  law  beyond  its  literal 
terms,  so  as  to  affirm  by  implication  that  the  article  warranted  is  not  only  such  as  it  is  ex- 
pressly declared  by  the  warrantor  to  be,  but  also  fit  for  the  purpose  to  which  he  knew  the 
vendee  intended  to  apply  it,  and  whether,  as  a  consequence,  the  vendor  may  be  held  liable  for 
the  damages  sustained  by  the  vendee  by  reason  of  such  special  unfitness,  are  questions  which 
have  lately  been  much  considered. 

The  rule  of  the  civil  law  tliat  a  sound  price  implies  a  warranty,  is  not  that  of  the  common 
law.  Caveat  venditor,  says  the  civil  law,  belonging  to  uncommercial  peoples,  and  exercising  its 
jurisdiction  in  the  matter  of  buying  and  selling,  for  the  most  part  to  protect  the  subject  in  the 
purchase  of  articles  intended  for  domestic  use.  Caveat  emptor,  says  the  common  law,  the  vigor- 
ous growth  of  a  commercial  community,  seeking  to  stimulate  a  spirit  of  mercantile  adventure, 
and  to  cultivate  the  shrewdness  and  self-reliance  essential  to  success  in  trade.  Therefore,  al- 
though it  is  a  general  rule  of  the  common  law,  that  a  vendor  is  ecpiitahly,  if  not  legally 
bound  to  communicate  to  a  vendee  his  knowledge  of  material  facts  of  which  he  knows  the 
other  to  be  ignorant  (2  Kent's  Com.  482;  1  Story  Eq.  Jur.  §  207),  yet  in  the  case  of  executed 
sales  of  personal  jiroperty  made  without  false  representations  or  artifice,  in  which  the  buyer 
has  had  an  opportunity  of  examining  his  purchase,  the  law  does  not  imply  any  engagement  on 
the  part  of  the  seller  that  he  warrants  the  article  sold  against  latent  defects.  If  he  knows  of 
such  defects,  and  either  volunteers  information  in  regard  to  the  qualities  of  the  article,  or  an- 
swers the  queries  of  the  vendee  respecting  it,  he  will  be  held  responsible  in  damages  for  the 
truth  of  his  assertions,  provided  they  are  statements  of  fact  and  not  merely  of  opinion.  But  if 
in  such  case  he  makes  no  untrue  affirmation,  whether  because  he  knows  nothing  on  the  subject, 
or  because  he  is  not  asked,  the  maxim  o^  caveat  emptor  applies.  Parkinson  v.  Lee,  2  East,  314; 
Paul  V.  Hadley,  23  Barb.  521  ;  Eagan  v.  Call,  10  Casey  (Penn.),  236. 

But  with  the  very  growth  of  commerce  became  apparent  the  necessity  of  absolute  good  faith 
in  dealing,  as  still  more  necessary  to  its  protection  and  success  than  sharpness  of  wit.  Accord- 
ingly, two  exceptional  rules,  rather  natural  offshoots  of  the  common  law  under  the  influence  of 
commerce,  than  enforced  grafts  upon  it,  were  established. 

First,  it  was  early  declared  that  the  law  implied  in  sales  of  articles  by  the  manufacturer  of 


328  SALES  OF  PERSONAL  PROPERTY.  [CH.  X. 

Warranty  of  Title.  —  The    same    questions    which   we  are 
now  considering,  are  sometimes  presented  where  the  warranty, 

them,  that  they  should  be  of  merchantable  quality.  See  Misner  v.  Granj^er,  4  Gil.  69  ;  Laing 
V.  Fidgeon,  6  Taunt.  108  ;  Gardiner  v.  Gray,  4  Camp.  144.  This  rule  is  based  on  the  manu- 
facturer's means  of  knowledge  and  the  presumption  of  his  actual  knowledge  of  any  defect,  and 
was  afterwards  extended  to  or  interpreted  to  include  sales  of  other  articles  to  he  furnished,  or 
which  the  purchaser  had  no  opportunity  to  inspect,  as  in  the  case  of  sales  by  sample  only.  See 
Fish  V.  Koseberry,  22  111.  288  ;  Waring  v.  Mason,  18  Wend.  425. 

By  the  second  cxcejition  it  was  required  that  the  thing  sold  should  be  reasonably  fit  for  the 
purpose  for  which  the  vendor  knew  it  was  intended  by  the  vendee,  although  such  purpose  was 
not  named  in  the  warranty. 

This  last  exception  has  given  rise  to  much  discussion,  involving  both  its  existence  and  ex- 
tent. It  has  lately  been  denied  by  respectable  authority,  and  is  still  not  universally  admitted. 
But  in  England  it  is  now  established,  and  it  is  also  fully  recognized  in  New  Y^ork  and  several 
other  States  of  the  Union.  Where  it  thus  prevails,  it  results  that  the  second  branch  of  the 
rule  in  Hadley  v.  Baxendale  (9  Exeh.  .341 ),  considered  ante,  76  et  seq.  applies  to  it. 

It  perhaps  originated  in  the  case  of  Gray  v.  Cox,  fi  D.  &  R.  200,  where  Abbott,  C.  J.,  ex- 
pressed the  strong  inclination  of  his  opinion  in  its  favor,  but  the  remaining  judges  inclining 
the  other  way,  the  point  was  left  undecided.  But  it  has  been  since  repeatedly  recognized  in 
England  and  this  countrv.  Williamson  v.  Allison,  2  East,  446  ;  Bluett  v.  Osborne,  1  Stark. 
(N.  P.)  .'i84  ;  Jones  n.  Bright,  5  Bing.  5.33  ;  Ollivant  v.  Bayley,  5  Q.  B.  288;  Getty  v.  Roun- 
tree,  2  Chaud.  (Wis.)  28;  Walton  v.  Cody,  1  Wis.  420;  Bird?;.  Mayer,  8  Wis.  362  ;  Beals 
V.  Olmstead,  24  Vt.  114  ;  Overton  v.  Phelan,  2  Head,  445.  In  these  and  similar  cases,  the 
damages,  flowing  beyond  the  bounds  which  limit  the  responsibility  for  an  ordinary  breach  of 
warranty,  include  compensation  for  the  mischief  resulting  from  the  failure  of  the  article  war- 
ranted to  answer  the  special  purpose  to  which  it  is  applied.  Thus  in  Brown  v.  Edgington,  2 
Man.  &  Gr.  279,  the  defendant  was  held  liable  for  the  value  of  a  cask  of  wine,  lost  by  the 
breaking  of  a  rope  sold  by  him  to  supply  the  plaintiflT's  crane. 

This  rule  does  not  apply  where  a  party  purchases  on  his  own  judgment.  Hoe  r.  Sanborn, 
21  N.  Y.  554.     Nor  has  it  been  established  by  a  uniform  course  of  decision. 

In  Shepherd  v.  Pybus,  4  Scott's  N.  R.  434,  in  an  action  for  breach  of  warranty,  it  appeared 
that  the  defendant  had  sold  the  plaintiff"  a  new  barge,  warranting  it  reasonably  fit  for  use,  and 
knew  that  it  was  designed  by  the  vendee  to  be  applied  to  carrying  cement  in  casks.  After  the 
purchase  it  was  found  so  defectively  built  as  when  subjected  to  this  severe  test  to  let  in  consid- 
erable quantities  of  water,  whereby  a  cargo  of  cement  was  damaged  and  the  plaintiflfput  to  ex- 
pense in  i-epairing  the  barge  and  making  it  fit  for  use  in  this  particular  business.  The  breach 
was  held  not  to  be  sustained  by  evidence  that  the  barge,  though  fit  for  ordinary  use,  was  unfit 
for  the  carrying  of  cement. 

In  Chanter  v.  Hopkins,  4  M.  &  W.  399,  the  defendant  sent  to  the  plaintiff,  who  was  the  pa- 
tentee of  an  invention  known  as  "Chamber's  smoke-consuming  furnace,"  a  written  order  as 
follows  —  "  Send  me  your  patent  hopper  and  apparatus  to  fit  up  my  brewing  copper  with  your 
smoke-consuming  furnace."  The  furnace  having  been  accordingly  put  up  on  the  defendant's 
premises  was  found  not  to  answer  the  purposes  of  a  brewer.  It  was  held,  there  was  no  implied 
warranty  it  should  be  fit  for  the  purposes  of  a  bi-ewery,  and  that  the  defendant  having  defined 
the  particular  machine  wanted,  the  plaintiff" fulfilled  his  contract  in  sending  it. 

In  Keates  v.  Cadogan  (2  Eng.  L.  &E.  318),  the  lessor  of  a  hoiise  knew  it  to  be  in  a  ruinous 
condition.  No  warranty  was  held  to  be  implied  that  it  was  fit  for  occupation,  and  he  was  held 
not  liable  for  special  damages  from  its  unfitness. 

The  distinction  is  taken  in  the  case  of  sales,  that  if  an  order  be  given  for  an  nndescribed  and 
unascertained  thing,  stated  to  be  for  a  particular  purpose,  which  the  merchant  or  manufacturer 
supplies,  the  article  must  answer  the  purpose.  But  if  the  purchaser  define  the  particular  thing 
wanted,  the  vendor  fulfills  his  contract  by  furnishing  it  and  is  not  liable  to  damages,  although 
he  knows  what  the  purchaser  wants  it  for,  and  knows  also  that  it  is  unfit  for  such  purpose. 
Chanter  v.  Hopkins,  4  M.  &  W.  399  (supra).     Prideaux  v.  Bunnett,  1  C.  B.  (N.  S.)  613. 

And  in  Prentice  v.  Dike,  6  Duer,  220,  which  was  the  case  of  a  sale  of  wool  to  be  made  into 
hats,  with  a  warranty  that  it  contained  no  cotton,  the  contract  being  merely  for  the  sale  of  the 
goods  in  their  actual  state,  it  was  held  by  the  Superior  Court  of  the  city  of  New  York,  that 
though  the  wool  was  in  fact  unfit  to  make  hats  of,  the  expressed  warranty  excluded  an  implied 
one  that  it  was  fit  for  the  intended  manufacture,  and  the  vendor  was  held  not  liable  for  the  re- 
sults of  the  unfitness. 

Again,  in  the  case  of  Milburn  v.  Belloni  (34  Barb.  607),  in  the  same  State,  where  coal-dust 
was  warranted  to  contain  no  dust  of  soft  or  bituminous  coal,  and  was  sold  by  the  vendor  with 
the  knowledge  that  it  was  intended  by  the  vendee  for  the  manufacture  of  brick,  for  which 
purpose  the  dust  of  soft  coal  was  unfit,  the  warranty  was  broken,  but  the  warrantor  was  held 
liable  only  for  the  diff'erence  in  value  between  the  article  as  represented  and  its  actual  value, 
and  not  for  the  damage  caused  by  its  attempted  use  in  the  manufiicture. 

But  the  two  cases  last  cited  do  not  appear  to  us  to  consist  with  the  late  English  decisions. 


CH.    X.]  WARRANTY    OF   TITLE.  329 

instead  of  referring  to  the  quality  of  the  article,  is  one  of  title.^ 
The  result  of  the  older  English  authorities  is,  that  by  the  law  of 

and  arc  m  effect  overruled  by  a  late  decision  in  the  court  of  last  resort  in  the  same  State,  the 
principle  of  which  a])])lies,  as  we  think,  wherever,  as  in  these  cases,  the  article  is  sold  witli  ref- 
erence to  its  re])r()diu'tion  in  a  certain  new  form,  or  its  fitness  for  a  special  jjurpose,  and  the 
quality  it  is  warranted  to  have  is  essential  to  such  reproduction  or  special  purpose.  Passinger 
V.  Thorbnrn,  ;54  N.  Y.  634,  infra. 

In  the  case  of  Randall  ().  Raper,  1  Ellis,  B.  &  Ellis,  84  (96  Eng.  Cora.  Law,  82),  the  defend- 
ant had  sold  tlie  ])laintiff  some  barley,  warrantinfc  it  to  be  "  Chevalier  seed  barley."  The  plain- 
tiff on  the  faith  of  that  warranty  had  resold  it  with  a  similar  one.  The  barley  ])roved  to  be  not 
"  Chevalier  seed  barley,"  but  of  an  inferior  quality,  in  consequence  of  which  the  ]ihuiitiff's 
vendee  obtained  a  poor  crop.  It  was  held,  Mr.  Justice  Wio;htman  doubting-,  tliat  the  ]ilaintiff 
was  entitled  to  recover  the  amount  to  which  he  had  become  liable  to  the  vendee,  although  it 
was  unliquidated  as  between  him  and  his  vendee. 

In  Passinger  v.  Thorbnrn,  34  N.  Y.  634,  the  last  cited  case  was  approved  by  the  New  York 
Court  of  Appeals  in  a  judgment  afhrming  that  of  the  court  below  (3.5  Barb.  17).  The  de- 
fendant sold  cabbage  seed,  warranting  that  it  would  produce  Bristol  cal)bages,  and  the  plaintiff 
having  sowed  it  in  the  expectation  of  producing  that  crop,  the  warranty  proved  untrue.  The 
damages  were  held  to  be  the  value  of  a  crop  such  as  should  have  been  produced  by  the  seed 
that  year  had  it  conformed  to  the  warranty,  deducting  the  expense  of  raising  the  crop,  and  the 
value  or  product  of  the  one  in  fact  raised.  The  strong  cases  of  Borradaile  v.  Brunton,  8 
Taunt.  535,  and  Brown  v.  Edgington,  2  Man.  &  Gr.  279  (sitpra),  with  other  English  cases  to 
the  same  purport,  are  cited  and  approved ;  and  the  doctrine  of  Hadley  v.  Baxendale  is  applied 
to  its  full  extent  to  the  case  of  a  breach  of  warranty.  So  also,  in  the  very  recent  case  of 
Flick  V.  Wetherbee  (20  Wis.  392),  the  lessor  of  farming  land  having  covenanted  to  supply 
seed,  was  held  bound  to  supply  good  seed,  and  the  same  measure  was  applied  to  the  lessee's 
damages  by  reason  of  a  partial  failure  of  the  crop  in  consequence  of  the  inferiority  of  the  seed 
furnished. 

A  marked  advance,  keeping  pace  with  the  enlarged  views  and  commercial  spirit  of  the  age, 
will  be  observed  by  a  comparison  of  these  cases  with  the  earlier  one  of  Poulton  v.  Lattimore, 
4  M.  &  G.  208  (a.'d.  1829),  post,  448. 

By  the  doctrine  of  the  late  decisions,  therefore,  where  from  the  want  of  a  certainly  defined, 
existing,  and  intrinsic  quality  which  an  article  sold  is  warranted  by  the  vendor  to  have,  con- 
sequential damages  naturally  ensue  as  the  direct  result  of  its  application  by  the  vendee  to  the 
purpose  for  which  he  intended  it,  and  the  vendor  knew  he  intended  it,  the  vendor  is  liable  for 
such  damages. 

See,  for  careful  statements  of  the  limitations  of  this  doctrine,  the  notes  appended  to  the  two 
Nisi  Prius  cases  of  Walker  v.  Milner,  4  F.  &  F.  745,  and  Sanborn  v.  Herring,  7  Am.  Law 
Reg.  (N.  S.)  457. 

So  again,  as  a  correlative  principle,  it  may  be  said,  on  the  authority  of  a  corresponding  class 
of  cases,  that  where  unsoundness  or  disease  in  the  thing  sold  is  of  a  contagious  or  communi- 
cable nature,  and  the  vendor  at  the  time  of  the  sale  is  aware  of  the  vendee's  intention  to  put 
it  with  others  of  the  same  kind,  so  that  the  disease  or  defect,  if  it  exist,  will  be  liable  to  be 
communicated  to  them,  the  same  rule  as  to  consequential  damages  will  apply  in  the  ease  of  a 
warranty  of  soundness  as  would  exist  in  the  case  of  intentional  fraud,  and  in  addition  to  the 
loss  in  value  of  the  subject  of  the  sale  the  warrantor  will  be  liable  also  for  the  deterioration  or 
destruction  of  the  others  of  its  class,  so  far  as  the  contact  had  been  intended  by  him  and  ex- 
pected by  the  vendee. 

So  in  Knowles  v.  Nunns,  14  Law  Times  R.  592  (Q.  B.),  where  in  an  action  on  a  warranty 
of  soundness  of  two  oxen  sold  by  the  defendant  to  the  plaintiff',  which  had  the  rinderpest  at 
the  time,  and  after  the  purcha.se  died  of  it,  and  nine  other  cattle  belonging  to  the  plaintiff  also 
died  in  consequence  of  being  placed  with  them,  and  it  appeared  that  the  plaintiff  had  told  the 
defendant  he  wanted  to  put  them  with  his  other  stock,  and  would  not  have  them  if  there  were 
the  least  fear  of  disease,  on  which  the  defendant  gave  the  verbal  warranty  on  which  the  action 
was  brought,  the  rule  in  Hadley  v.  Baxendale  was  applied  and  the  defendant  held  liable  not 
only  tor  the  value  of  the  two  oxen  sold,  but  for  that  of  the  other  nine.  For  the  same  rule  in  re- 
coupment, see  Bradley  v.  Rea,  14  Allen,  20.    See  Mullet  v.  Mason,  1  L.  R.  559,  post,  296,  note. 

It  is  presumed,  however,  that  this  doctrine  would  not  apply  to  a  plainly  expressed  written 
warranty,  as  it  would  tend  to  vary  the  written  contract  by  parol  evidence.  And  in  conformity 
with  the  principles  of  the  law  of  contracts  it  should  be  resorted  to  only  where  the  contract  it- 
self does  not  explicitly  furnish  the  rule.     In  the  absence  of  fraud  no  responsibility  should  be 

^  As  to  right  of  recovery,  and  measure  of  damages,  for  breach  of  warranty  ot  title  to  fix- 
tures sold  by  lessor  to  lessee,  see  Wilkinson  v.  Ferrel,  24  Penn.  St.  190;  Beckmann  r.  Bor- 
mann,  3  E.  D.  Smith's  (N.  Y.)  C.  P.  R.  409. 


330  SALES  OR  PERSONAL  PROPERTY.  [CH.  X. 

England  there  is  no  warranty  of  title  in  the  actual  contract  of 
sale,  any  more  than  there  is  of  quality  ;  and  so  it  has  recently 
been  held  in  a  case  in  the  Court  of  Exchequer*  But  according 
to  the  Roman  law,t  and  in  France,^  and  Scotland,  and  generally 
in  the  United  States,  there  is  always  an  implied  contract  that  the 
vendor  has  a  right  to  dispose  of  the  subject  which  he  sells.  In 
an  action  (on  the  case)§  on  the  warranty  of  title  implied  in  the 
sale  of  a  horse,  Blasdale  bought  the  horse  of  Babcock,  but  was 
afterwards  sued  by  Snow  in  trover  for  the  animal  ;  he  gave 
notice  to  the  defendant  of  the  suit ;  and  judgment  was  obtained 
against  him  for  the  value  of  the  horse,  with  costs.  It 
[294]  was  held  at  the  trial  that  the  judgment  was  strong  but 
not  conclusive  evidence  of  Snow's  title ;  and  that,  if  not 
rebutted,  the  measure  of  damages  was  the  amount  of  the  recov- 
ery against  Blasdale  in  the  other  action  (verdict  and  costs).  And 
this  was  held  right  by  the  Supreme  Court  of  New  York.^ 

In  an  action  (of  assumpsit)  under  somewhat  different  circum- 
stances,||  the  jDlaintiff  bought  a  horse  of  the  defendant  for  $55 
cash,  and  another  horse  valued  at  $85,  in  all  $140;  the  plaintiff 
sold  the  horse  to  one  Milligan,  and  shortly  after,  one  Gordon 
replevied  the  horse  of  Milligan,  and  recovered  judgment,  $72.32 
for  damages,  and  $33.95  costs,  which  were  paid  by  Milligan ; 
Milligan  also  paid  the  costs  of  his  own  defense.  The  plaintiff 
then  settled  with  Milligan  amicably,  and  claimed  of  the  defend- 
ant the  original  amount  paid  by  him,  and  also  the  damages  and 
costs  paid  by  Milligan  and  repaid  by  the  plaintiff  to  him.  The 
cause  was  referred ;  and  the  defendant  insisted  that  the  measure 
of  damages  was  the  price  of  the  horse,  with  the  interest  thereof, 

*  Morley  v.  Attenborough,  3  Exchequer  R.         t  Code  Civil,  ch.  4,  §  1,  art.  1603. 
500 ;  where  the  English  cases  are  examined.  §  Blasdale  v.  Babcock,  1  J.  R.  517. 

t  Domat,  book  i.  tit.  2,  §  2,  art.  3.  ||  Armstrong  v.  Percy,  5  Wend.  535. 

imposed  on  either  party  to  the  contract,  which  the  contract  itself  plainly  shows  he  did  not  in- 
tend to  assume. 

It  may  be  observed  that  where  the  breach  of  warranty  is  brought  by  the  assignee  of  the 
right  of  action,  the  measure  of  damages  is  the  same  as  if  the  action  had  been  brought  by  the 
assignor.  The  amount  of  the  consideration  of  the  assignment  is  immaterial.  Sweet  v.  Brad- 
ley, 24  Barb.  549  {ante  152,  note  2). 

But  in  actions  of  this  kind  against  the  assignor  of  a  claim  acting  in  good  faith,  the  measure 
of  damages  is  the  price  paid  with  interest. 

And  where  a  claim  on  the  government  had  been  assigned  for  a  valuable  consideration,  but 
was  not  paid  in  consequence  of  its  having  before  been  paid  under  an  authority  previously 
given  by  the  assignor,  the  assignee  was  held  entitled  to  recover  only  the  consideration  paid 
with  interest  from  the  time  of  presenting  the  claim  to  the  government  according  to  the  legal 
rate  here,  although  the  transaction  took  place  in  a  foreign  country.  Eaton  v.  Melius,  7  Gray 
(Mass.),  566. 

1  The  measure  of  damages  in  Alabama  for  breach  of  a  warranty  of  title  to  a  chattel,  is  the 
value  of  the  chattel  at  the  time  of  the  purchase  with  interest,  and  the  necessary  costs  of  de- 
fending a  suit  brought  against  a  vendee  to  test  the  title,  with  interest  from  the  time  of  pay- 
ment. Rowland's  Adm'r  v.  Shelton,  25  Ala.  (N.  S.)  217.  So  in  Missouri.  Johnson  v.  Blank, 
Ex'r,  34  Mo.  255.  And  whci'e  the  warranty  of  title  to  an  infant  slave,  whose  services  were 
worth  nothing,  was  broken,  the  expenses  of  taking  care  of  it  were  allowed.     Ibid. 


en.  X.] 


WARRANTY    OF   TITLE.  331 


deducting  his  services  since  the  sale  to  the  plaintiff,  and  that  the 
plaintiff  was  not  entitled  to  recover  the  costs  and  expenses  in 
the  replevin  suit  of  Gordon.  On  a  motion  to  set  asid«  the 
report,  the  court  held  that  the  referees  should  have  allowed  the 
plaintifl'  the  price  paid  the  defendant  for  the  horse,  and  interest, 
together  with  the  costs  which  he  became  liable  to  pay  Gordon, 
in  the  suit  brought  to  establish  his  title  ;  and  the  expenses  paid 
by  Milligan  in  his  own  defense  were  disallowed.  It  may  be 
proper  to  observe  that  the  court  here  appears  to  have  lost  sight 
of  the  principle  laid  down  in  the  cases  already  cited,  that  the 
recovery  should  be  estimated,  not  by  the  price  paid,  but  by  the 
real  value.^  If  this  rule  is  true  in  regard  to  a  warranty  of  sound- 
ness, there  seems  no  reason  why  it  should  not  apply  to  a  war- 
ranty of  title.^ 

1  So  in  Case  v.  Hall,  24  Wend.  102,  Mr.  C.  J.  Nelson,  in  delivering  the  opinion  of  the  court, 
said,  "  la  case  of  a  breach  of  warranty  the  measure  of  damages  is  the  purchase-money  and  in- 
terest." And  in  the  case  of  Burt  v.  Dewey,  31  Barb.  540,  the  Supreme  Court  adopts  the  same 
nominal  rule.  In  neither  instance,  however,  did  the  case  turn  on  the  distinction  between  the 
value  and  the  price  paid,  nor  does  it  appear  that  they  were  not  in  fact  the  same. 

2  Analogous  to  a  warranty  of  title  is  that  of  one  who  wrongfully  or  by  mistake  holds  himself 
out  as  authorized  to  sell  another's  goods.  In  such  case,  the  damages  are  measured,  not  by  the 
contract  which  the  pretended  agent  had  no  power  to  make,  but  by  the  injury  resulting  from 
such  want  of  power,  and  include  the  costs  of  an  unsuccessful  suit  against  the  alleged  principal 
to  enforce  the  contract. 

In  a  late  English  case,  the  defendants  warranting  themselves  as  agents  of  Lloyd  &  Co.,  con- 
tracted for  the  sale  to  the  plaintiffs  by  Lloyd  &  Co.  of  certain  cargoes  of  American  wool  which 
were  soon  to  arrive.  Lloyd  &  Co.  having  repudiated  the  contract,  which  they  had  not  sanc- 
tioned, the  plaintiff  filed  a'bill  in  equity  against  them  for  specific  performance,  which  was  dis- 
missed with  costs.  In  the  action  on  the  warranty  the  Court  of  Queen's  Bench  held  that  the 
damages  should  include  the  difference  between  the  contract  price  of  the  wool  and  the  value  of 
like  wool  at  the  time  and  place  where  the  cargoes  would  have  been  delivered  had  the  contract 
been  binding,  taking  into  account  all  the  mercantile  circumstances  affecting  the  value,  and 
including  the  costs  of  the  chancery  suit  taxed  as  between  attorney  and  client.  Hughes  v. 
Graeme,  33  Law  Journ.  (N.  S.)  Q.'B.  335. 

The  same  mile  substantiallv  has  been  recently  declared  in  a  similar  case  by  the  New  York 
Court  of  Appeals.     White,  Rec'r,  v.  Madison,  26  N.  Y.  117. 

So  in  a  like  case  in  the  Court  of  Queen's  Bench,  Mr.  Justice  Crompton  remarked,  "  The 
damages  are  to  be  measured  by  what  was  lost  to  the  plaintiff  by  not  having  the  valid  contract 
which  the  agent  warranted  he  had."  And  a  verdict  for  the  difference  between  the  ))rice  named 
in  a  contract  made  without  authority  and  repudiated  by  the  alleged  principal  and  that  obtained 
on  a  resale  fairly  made,  was  held  right.  Simons  v.  Batchett,  7  E.  &  B.  568.  And  see  Max- 
well V.  Parnell,  1  Irish  R.  (Com.  Law  Series)  234. 

An  attorney  at  law  executed  to  a  deputy  sheriff  in  the  name  of  the  plaintiff  in  sundry  writs 
the  following  agreement  :  "  Know  all  men  by  these  presents,  that  we  agree  to  hold  harmless 
A  B,  sheriff,  for  selling  stoves  and  iron  on  the  executions  in  his  hands  at  this  time,  to  wit, 
one  in  Knight  v.  Cheshire  Iron  Works,  the  other,  Dooloy  v.  Same,  and  from  all  costs,  damages, 
and  expenses  whatsoever,  that  may  result  or  accrue  to  him  for  attaching  or  selling  Cheshire 
Iron  Works'  property,  or  property  claimed  or  which  belong  or  belonged  to  Cheshire  Iron 
Works."  In  an  action  by  the  deputy  sheriff  against  the  attorney  for  falsely  representing  that 
he  had  authority  so  to  execute  it,  it  was  held  that  the  jury  might  consider  on  the  question  of 
damages  a  judgment  recovered  against  and  ])aid  by  the  plaintiff  for  taking  and  selling  the 
property  mentioned  in  the  agreement,  deducting  therefrom  so  much  as  consisted  of  damages 
resulting  from  attachments  made  by  the  plaintiti"  after  the  making  of  the  contract,  or,  if  that 
amount  could  not  be  ascertained,  the  rule  of  damages  might  be  the  amount  of  the  judgments  in 
favor  of  the  parties  whose  names  had  been  signed  by  the  defendant  to  the  contract,  and  which 
had  been  satisfied  by  the  application  thereon  of  the  avails  of  the  sale  of  the  property  so  taken 
by  the  plaintiff.  The  plaintiff  was,  moreover,  entitled  to  recover  the  expenses  of  sundry  litiga- 
tions directly  necessitated  by  the  fraud,  and  proper  compensation  for  his  own  time  and  services 
in  the  matter,  besides  interest  on  his  expenses  up  to  the  verdict.  Jones  v.  Wolcott,  2  Allen 
(Mass.),  247. 


332  SALES  OF  PERSONAL  PROPERTY.  [OH.  X. 

Implied  Warranty. — In  a  case*  where  the  defendant  had 
sold  the  plaintiff  certain  merchandise,  called  in  the  bill  of  parcels 
scarlet  cuttings,  intended  for  the  China  market,  which  turned 
out  not  to  be  so.  Lord  Ellenborough  held  that  such  a  description 

implied  a  warranty  that  they  were  the  article  named, 
[295]   and  charged  that  the  plaintiff  was  entitled    to   recover 

such  a  sum  as  he  would  have  received  had  the  warranty 
been  true  with  reference  to  the  China  market ;  the  value  to  be 
recovered  being  the  value  which  the  plaintiff  would  have 
received  had  the  defendant  faithfully  performed  his  contract. 

Indorsements.  —  It  has  been  held  in  Massachusetts,!  that 
where  a  warranty  is  given  that  the  indorsements  on  a  note  are 
genuine,  and  they  prove  to  be  forged,  "  the  measure  of  damages 
will  be  the  difference  between  the  amount  of  the  note  and  its 
actual  value,  whatever  that  may  be."  But  I  apprehend  in  prac- 
tice it  will  be  found  that,  unless  the  evidence  in  regard  to  a  note 
place  the  solvency  of  its  maker  beyond  doubt,  it  is  almost  im- 
possible to  prove  its  value  with  any  tolerable  degree  of  accuracy. 

It  has  been  decided  in  the  same  State  in  an  action  of  assump- 
sit, brought  on  a  warranty  of  an  indorsement  as  genuine,  that 
the  plaintiff  was  entitled  to  recover  as  part  of  his  damages  the 
costs  incurred  by  him  in  an  unsuccessful  suit  against  the  sup- 
posed indorser,  if  the  plaintiff  commenced  the  suit  in  good 
faith,  not  knowing  that  the  signature  was  forged,  and  gave  the 
warrantor  seasonable  notice  of  the  pendency  of  the  suit,  and 
requested  him  to  furnish  evidence  of  the  genuineness  of  the  sig- 
nature ;  and  the  court  held  that  the  rule  established  in  actions 
for  a  breach  of  the  covenant  of  warranty  in  the  conveyance  of 
real  estate,  must  govern  the  case.J  ^ 

Fraud.  —  We   have  thus  far  considered  the  subject  without 

*  Bridge  v.  Wain,  1  Stark.  504.  it  seems  that  such  judgment  is  admissible  to 
t  Coolidge  V.  Brigham,  1  Met.  547.  prove  the  amount  of  damages  recovere<l,  and 
J  Coolidge  V.  Brigham,  5  Met.  68 ;  Swett  v.  is  conclusive  of  the  validity  of  the  vendor's 
Patrick,  3  Fairfield,  9.  In  Alabama,  it  is  title,  if  it  was  obtained  without  fraud  or 
held  that,  in  an  action  by  the  vendee  of  per-  collusion,  upon  notice  given  to  him  of  the 
sonal  property  against  the  vendor,  upon  a  pendency  of  the  action.  And  the  measure  of 
warranty  of  title,  a  judgment  against  the  ven-  damages  in  an  action  for  a  breach  of  a  war- 
dee,  at  the  instance  of  a  third  person,  claiming  ranty  of  title  on  the  sale  of  personal  jiroperty, 
to  be  the  rightful  owner,  of  which  suit  the  cannot  exceed  the  damages  sustained  by  the 
vendor  had  no  notice,  is  not  evidence  to  prove  vendee.  Salle  v.  Light's  Ex'rs,  4  Ala.  (N.  S.) 
that  the  title  of  the  latter  was  defective.     But  700. 


1  And  in  Tennessee,  the  courts  have  applied  to  actions  on  covenants  for  the  foilure  of  title 
to  chattels  the  same  measure  as  in  the  case  of  land,  which  in  that  State  is  the  price  paid  and 
interest.     Crittenden  v.  Posey,  1  Head  (Tenn.),  311. 


CH.    X.]  WARRANTY    OF    TITLE.  333 

any  admixture  of  fraud.^  Where  that  occurs,  the  rights  of  the 
parties  are  altered.  If  the  vendor  of  a  chattel  make  fraudulent 
representations  in  regard  to  the  value  of  the  property'-,  or  is 
otherwise  guilty  of  fraud  in  making  or  performing  the  contract, 
to  the  injury  of  the  vendee,  the  latter  has  his  election  of 
remedies ;  he  may  stand  to  his  bargain  even  after  he  has  [296] 
discovered  the  fraud,  and  recover  damages  on  account  of 
it,^  or  he  may  rescind  the  contract  and  recover  back  what  he  has 

/  1  See  post,  559.  In  such  case  the  lowest  measure  of  damages  is  that  in  the  action  on  the 
warranty,  namely,  the  difference  between  the  actual  and  sound  vahie.  Thompson  v.  Burgey, 
36  Peuu.  403.  The  ordinary  rule  is,  the  difference  between  the  actual  value  of  the  property 
and  what  that  value  would  have  been  had  the  representations  been  true.  I'ag'e  v.  Parker,  40 
N.  H.  47  ;  43  N.  H.  363  ;  Carr  v.  Moore,  41  N.  H.  131  ;  Fisk  v.  Hicks,  31  N.  H.  (11  Foster) 
535  (ante,  291).  To  which  the  jury  are  at  liberty  to  add  something  by  way  of  punishment 
for  the  fraud.    McAvoy  v.  Wright,  25  Ind.  22  (post,  454,  note). 

The  hlijhest  rule  includes  all  the  damages  which  the  vendee  has  sustained  as  the  manifest 
consequence  of  the  fraud.  Thus  where  a  cattle  dealer  sold  a  cow,  fraudulently  representing 
her  as  free  from  Infectious  disease,  knowing  that  she  was  not,  and  the  plaintiti'  placed  her  with 
five  others  which  caught  the  disease  and  died,  the  plaintiif  in  an  action  for  the  fraud  was  held 
entitled  to  recover  as  damages  the  value  of  all  the  cows.  MuUett  v.  Mason,  1  L.  R.  (C.  P.) 
559.  See  Knowles  v.  Nunns,  14  L.  T.  R.  592  (23),  ante,  90,  293  ;  Paris  v.  Lewis,  2  B.  Munroe, 
375  ;  Bradley  v.  Rea,  14  Allen,  20  ;  Sherrod  v.  Langdon,  21  Iowa,  518.  And  in  this  last 
case  it  was  held  that  the  defendant  must  be  presumed  to  anticipate  the  natural  consequences  of 
his  acts,  as  that  the  animals  he  sells  will  be  placed  with  other  animals ;  and  therefore  he  cannot 
avail  himself  of  the  defense  that  he  did  not  know  that  the  plaintiff  intended  to  place  the 
animals  sold  on  his  farm. 

So  where  one  sold  a  drove  of  horses  which  he  knew  to  be  infected  with  a  contagioxis  disease, 
and  concealed  the  disease  from  the  buyer,  who  bought  for  a  sound  price,  the  buyer,  in  case  of 
exercising  his  right  to  rescind  the  contract,  was  held  entitled  to  recover  the  money  paid,  with 
interest,  and  the  value  of  his  care,  attention,  and  expense  in  preserving  the  herd.  If  he  should 
elect  not  to  rescind,  lie  would  be  entitled  to  damages  equivalent  to  the  value  of  such  as  had  died, 
and  the  difference  between  the  value  at  that  time  of  the  surviving  horses  aud  the  price  paid  for 
them,  with  interest  on  these  sums  from  the  date  of  sale ;  also  the  value  of  his  care,  time,  and 
expense  in  preserving  the  herd.  The  buyer's  damages  are  not,  in  such  case,  confined  to  the 
value  of  those  actually  diseased  at  the  time,  but  the  disease  is  regarded  as  infecting  the  whole 
herd  to  the  extent  proved  up  to  the  trial.  The  latter  is  liable  also  for  damages  sustained  by 
the  buyer  to  the  extent  of  the  contagion  communicated  to  other  animals  of  the  buyer  without 
his  default.     Wintz  v.  Morrison,  17  Tex.  372. 

And  as  we  have  elsewhere  seen  (ante,  79,  note  2),  the  recovery  of  consequential  damages 
in  actions  for  wrongs  is  not  subjected  to  the  limitation  there  noticed  as  applicable  to  actions  of 
contract.  It  is  not  therefore  necessary  to  the  recovery  of  the  special  damages  here  mentioned 
to  show  that  the  vendor  knew  that  the  diseased  animal  was  to  be  placed  with  others  belonging 
to  the  plaintiff.     Packard  v.  Slack,  32  Vt.  9. 

And  where  the  chattel  sold  has  different  values,  according  to  the  use  for  which  it  is  intended, 
the  value  which  measures  the  damage,  as  in  the  case  of  certain  warranties  (ante,  293,  note  1),  is 
that  which  the  vendor  represented  it  to  have  with  reference  to  the  purpose  to  which  he  knew  it 
was  to  be  applied  by  the  vendee.  And  where  oxen  purchased  for  work,  and  represented  sound, 
proved  unsound,  and  by  reason  of  the  unsoundness  were  worth  ten  dollars  less  for  beef  and 
twentv-five  dollars  less  for  work,  the  Larger  sum  was  held  to  be  the  measure.  Ladd  v.  Lord, 
36  Vt".  194  (ante,  293,  note). 
^  Where  there  are  several  false  representations,  the  rule  of  damages  in  an  action  founded  on 
/  the  deceit,  is  the  difference  between  the  actual  value  of  the  property  and  its  value  estimated  b}' 
such  of  the  representations  as  were  not  only  false  but  fraudulently  made.  In  the  case  of  the 
action  for  the  deceit,  the  rule  is  the  same  as  in  an  action  on  the  warranty  only,  where  the 
warranty  covers  the  same  groimd  and  no  more  than  is  covered  in  the  other  case  by  representa- 
tions which  are  at  once  false,  fraudulent,  and  material.     Page  v.  Parker,  43  N.  H.  363. 

^  Where  one  had  been  induced  by  the  fraudulent  representations  of  another's  creditor  to  take 
from  the  debtor  certain  goods  and  give  the  creditor  his  own  note  for  the  debt,  and  it  proved 
that  the  goods  were  worth  much  less  than  represented,  but  it  did  not  appear  whether  the 
creditor  had  received  them  by  way  of  absolute  purchase  or  as  collateral  security  only,  the  in- 
struction of  the  judge  to  the  jury  to  find  for  the  defendant  if  the  difference  in  value  be- 
tween the  goods  as  represented  and  their  actual  value  equaled  the  balance  due  on  the  note, 
which  would  have  been  the  rule  in  the  case  of  an  absolute  sale,  was  held  inapplicable  and 


334  SALES  OF  PERSONAL  PROPERTY.  [CH.  X. 

paid  ;  or  again,  he  may  wait  till  the  vendor  bring  his  action,  and 
then  recover  the  damages  he  has  sustained  by  the  fraudulent 
act* 

And  in  a  case  of  this  kind  where  on  a  contract  to  give  per- 
sonal property  at  specified  prices  for  land,  the  contract  having 
been  part  performed,  but  the  land  not  being  conveyed  in  con- 
sequence of  the  defendant's  fraud,  it  was  held  that  the  plaintiflfj 
in  an  action  to  recover  the  value  of  the  property  delivered  by 
him,  was  not  limited  to  the  prices  specified  in  the  contract,  but 
could  recover  its  true  value. f 

In  Louisiana,  in  an  action  of  restitution  brought  to  rescind 
the  sale  of  a  slave  which  had  been  fraudently  warranted  sound, 
the  plaintiff  was  allowed  to  recover  the  price  paid  with  interest 
from  the  date  of  sale,^  and  expenses  incurred  in  medical  treat- 
ment4  ^ 

In  the  same  State,  the  Code  provides  that  when  the  seller 
knows  of  the  vice  of  the  thing  sold  and  omits  to  declare  it,  an 
action  of  restitution  may  be  brought.  In  such  an  action 
brought  on  account  of  the  vice  of  running  away  in  a  slave,  the 
plaintiff  can  only  recover  such  damages  as  would  at  the  time 
of  defendant's  refusal  to  restore  the  price  have  indemnified 
him ;  that  is,  the  price  with  interest,  the  expense  of  advertis- 
ing the  runaway,  and  the  costs  of  the  act  of  sale.     Counsel 

*  2  Kent's  Com.  5th  ed.  480;    Weston  v.  1.  "  The  restitution  of  the  price  ; 

Downes,  1  Douglass,  2.3  ;  Towers  v.  Barrett,  1  2.  "  That  of  the  fruits  or  revenues  when  he 

T.  R.   133  ;  Payne  v.   Whale,   7  East,  274  ;  is  obliged  to  return  them  to  the  owner  who 

King  V.  Boston,  7  East,  479  ;  Cor  mack  v.  Gil-  has  evicted  him ; 

lis,  cited   Ibid.  480 ;    Whitney  v.   Allaire,   4  3.  "  All  the  costs  occasioned  either  by  the 

Denio,  554.     Vide,  as  to  cases  in  Alabama,  suit  in  warranty  on  the  part  of  the  buyer,  or 

ante,  307,  note,  and  also  supra.  by  that  brought  by  the  original  plaintiff, 

t  Camp  V.  Pulver,  5  Denio,  48.  4.  "  In   fine,    the   damages,   where   he   has 

I  Johnson  v.  Johnson,  2  La.  Ann.  R.  67.  suffered   any,  besides   the  price   that  he  has 

The  whole  subject  of  warranties  is  governed  paid."      But   what   are   the   damages  '?      See 

in  that  State  by  a  provision  of  the  Code,  Art.  Tear  v.  Williams,  2  La.  Ann.  R.  868. 
2482,  which  applies  also  to  evictions,  and  the 
buyer  is  entitled  to  recover  :  — 

therefore  erroneous,  because  if  the  goods  were  taken  as  security  only,  the  defendant  should 
have  been  held  to  account  on  the  note  for  what  they  were  worth.  Stevenson  v.  Greenlee,  15 
Iowa,  96. 

As  has  been  already  observed  (ante,  30),  damage  resulting  from  fraud  or  deceit  always  fur- 
nishes a  cause  of  action.  Where,  in  an  action  of  deceit,  property  fraudulently  sold  but  re- 
tained by  the  vendee  has  any  value,  such  value  must  be  allowed  the  defendant  in  the  assess- 
ment of  the  damages.     McLaren  v.  Long,  25  Geo.  708. 

1  In  an  action  for  a  fraudulent  representation  as  to  the  age  of  a  female  slave,  it  is  not  an 
element  of  the  damage  that  she  might  have  borne  several  children  if  she  had  been  as  young  as 
represented.     This  is  too  remote  and  uncertain.     Whitson  v.  Grey,  3  Head  (Tenn.),  441. 

■^  The  law  of  Louisiana  imposes  on  the  seller  the  obligation  of  warranting  the  thing  sold, 
against  its  hidden  defects,  which  are  those  which  could  not  be  discovered  by  simple  insi)ection ; 
and  the  purchaser  may  retain  the  thing  sold,  and  have  an  action  for  the  reduction  of  the  price 
by  reason  of  the  difference  in  value  between  the  thing  as  warranted  and  as  it  was  in  fact.  But 
such  a  part  of  the  price  only  as  will  indemnify  the  vendee  for  the  difference  between  the  value 
of  the  thing  as  warranted  and  the  thing  actually  sold,  together  with  the  expenses  incurred  on 
the  thing  after  deducting  its  fruits,  can  be  recovered.    Bulkley  v.  Honold,  19  How.  390. 


CH.   X.]  WARRANTY    OF   TITLE.  335 

fees  in  the  restitutory  action  cannot  be  recovered.     They  are 
too  remote.* 

Civil  Law  Authorities.  —  The  modern  writers  of  the  [297] 
civil  Law  furnish  us  with  but  little  assistance  on  the  ques- 
tions which  we  have  considered  in  this  chaj^ter.  Even  the  mas- 
terl}^  treatises  of  Pothier,  and  the  profound  commentary  of  his 
favorite  author,  Molinoeus  or  Dumoulin,  on  this  subject,  are 
rather  to  be  referred  to  for  the  purpose  of  philosophical  specu- 
lation than  as  authorities  for  our  guidance.!  The  total  diver- 
sity of  our  forms  of  action,  together  with  the  far  greater  arbi- 
trary discretion  exercised  in  the  matter  of  damages  by  the  civil 
law  and  those  systems  which  adhere  to  its  teaching,  render  its 
authors  on  this  subject  of  comparatively  little  value  to  us. 

The  following  is  one  of  many  instances  put  by  MoliniBus : 
Venditor  fundi  vel  domus,  recepto  pretio  fuit  primum  in  mora 
tradendi :  unde  damnatus  ad  fructus  vel  mercedes  morae,  et  in 
id  quod  extrinseciis  emptoris  ob  eam  moram  interfuit,  quod 
probatum  fuit  ascendere  ad  ducenta,  quae  solvit,  re  tradita,  sed 
postea  evincitur,  et  emptor  multo  magis  extrinseciis  damnifica- 
tur  :  utrum  in  estimatione,  et  interesse  evictionis  debeant  in 
duplo  computari  ilia  ducenta  ob  pr^teritam  moram  non  tra- 
dendi soluta  ?  §90.  Here,  beyond  the  direct  loss  sustained  by 
the  delay,  extrinsic  damage  is  allowed. 

The  arbitrary  discretion  of  the  tribunal  which  has  cognizance 
of  the  cause,  is  clearly  stated  by  him  in  the  following  language  : 
Ut  si  inter  mercatores  et  negotiatores  frumentum  certo  die  et 
loco  :  puta,  tali  portu  promissum  sit,  quo  tempore  et  loco  preevi- 
debant  contrahentes  creditoris  interesse,  et  eum  alioquin  clamna 
passurum,  et  tamen  debitor  per  moram,  vel  culpam  etiam  circa 
dolum  malum  fefellit.  Ipsa  enim  aequitas  et  communis  com- 
merciorum  utilitas,  et  fides  hoc  casu  exigit,  non  soliim  estima- 
tionem  quanti  plurimi  si  qua  sit,  sed  etiam  extrinsecum  inter- 
esse (verumtamen  propinquum  et  efficax  prestari)  quod  etiam 
jura  aperte  volunt,  dum  hoc  casu  faciunt  actionem  arbitrariam, 
ut  videlicit  detur  judici  judicaturo  arbitriumet  potestas, 
non  soliim  super  principali  et  estimatione  quanti  plurimi,  [298] 
quee  videtur  pars  rei,  sed  etiam  super  adjudicatione,  et 
taxatione  hujus  interesse.    §97. 

*  Stewart  v.  Sowles,  3  La.  Ann.  R.  464.  L.  S.  Gushing.     Pothier  allows  the  buyer  the 

See    also,  Peterson  v.  Bum,  3  La.  Ann.  R.  expense  of  the  contract,  the  fees  paid  to  the 

655.  head  landlord,  expense  of  journeys  to  see  the 

t  Pothier,  Contract  de  Vente,  part  ii.  ch.  i.  property,  Avagoners  sent  to  fetch  it,  §§  69  and 

art.  5,  §  79,  et  seq.  and  sect.  2,  art.  viii.  §  150,  70  ;  and  the  rise  in  price  of  the  article,  even 

et  seq.  where  there  has  been  a  subsequent  fall,  is  ex- 

Pothier's  "  Contract  of  Sale,"  translated  by  pressly  given  by  §  76. 


336  SALES  OF  PERSONAL  PROPERTY.  [CH.  X. 

A  large  portion  of  this  treatise  is  occupied  with  the  subject 
of  eviction,  of  which,  as  applied  to  real  estate,  I  have  already 
spoken.  The  phrase  is  also  used  by  the  civil  law  where  the 
title  to  personal  property  fails ;  and  here  we  shall  see  that  the 
limit  of  recovery  is  not,  as  in  regard  to  land,  the  price  paid,  but 
the  value  of  the  article  at  the  time  of  sale.  Molinajus  thus 
discusses  the  case  of  eviction  of  a  slave,  who,  after  being  long 
serviceable  to  the  purchaser,  is  finally  taken  from  him  in 
advanced  age,  by  title  paramount ;  and  he  well  holds  that  the 
price  would  not  be  the  just  measure  of  damage  against  the 
seller  in  such  a  case.  Tum  cum  non  venderetur  res  soli  nee 
perpetuo  durabilis,  sed  quae  ultra  certum  tempus  vivere,  et  usui 
esse  non  posset,  certum  est  non  esse  actum,  nee  cogitatum,  ut 
frui,  te  habere  liceret  perpetuo,  sed  solum  ad  tempus  vitae,  quod 
verisimiliter  prasvisum  et  oestimatum  fuit,  et  ad  verisimilem 
durationem  majus  vel  minus  definitum  pretium.  Igitur  hoc 
casu  pretium  conventum  non  est  pretium  perpetui^  durationis, 
et  fruitionis  vitee  verisimiliter  expensae,  et  appreciata3.  Cum 
ergo  toto  fere  tempore  vitse  prsevisse  fruitus  sit  emptor,  nee 
per  evictionem  absit  nisi  modicum,  et  fere  inutile  tempus,  non 
potest  totum  pretium  repetere,  cum  intus  habeat  totum  fere 
commodum  et  fructum  pra3visa3  fruitionis  et  usus.     §127.* 

*  I  have  gone  over  Dumoulin's   Treatise,  nem  opinionem  sese  revolvit,   et  nihil   addit 

Do  eo  quod  interest   (Caroli  Molinffii  Opera  nisi  quod  confusionem  auget.     §29. 

Omnia,  Farisiis,  1681,  vol.  3,  p.  423),  but  with-  It  contains,  also,  much  discussion  on  the 

out  finding  much  of  practical  value.  subject  of  evictions,  of  the  stipulatio  dupla:, 

It  is  a  commentary  on  the  code,  De  Senten-  and  the  remote  damages  due  in  case  of  negli- 

tiis   quie  pro   eo   quod  interest  proferuntur ;  gence.     It  is  curious  throughout,  replete  with 

Cod.    lib.  vii.  tit.  xlvii.      The  leading  clause  the  learning  of  that  age,  and  with  a  vigor  and 

in  which  is,  Sancimus  itaque  in  omnibus  casi-  subtlety  which  would  do  credit  to  any  age,  but 

hus  qui  certam  habent  quautitatem  vel  natu-  of  little  practical  utility  to  us. 

ram,  velut  in  venditionibus  et  locationibus  et  No  one  can  fail,  in  turning  to  the  treatises 

omnibus  contractibus,  hoc  quod  interest  dupli  of  the  great  masters  of  the  civil  law,  to  per- 

quantitatem  minime  exccdere.  ceive   how  much   they  are  benefited   by    the 

A  great  portion  of  this  treatise  is  now  en-  superior  harmony  and  logic  of  their  system, 

tirely  valueless.     Thus,  no  small  part  of  it  is  Unembarrassed  by  any  conflict  of  legal  and 

occupied   with    laborious   discussions    of    the  equitable  jurisdictions,  unjierplexed  by  forms 

true  definition  of  the  term  interest  —  interesse  of  action,  relieved  from  a  great  portion  of  our 

extrinsecum,    interesse    communis,    interesse  distinctions  between  real  and  personal  prop- 

conventum  et  non   conventum,  §  16;    and   a  erty,  and  thus  emancipated  from  a  multitude 

variety  of  questions  growing  out  of  the  terms  of  futile  technicalities  which  have  no  bearing 

of  the  law  commented  on  ;  as  quid  sit  illud  whatever  on   the  rights  of   parties,  their  dis- 

simplum  ad  quod  interesse  singulare  refertur  cussions   have   a   clearness,  an   order,    and  a 

et  duplatur  ;  qui  sint  casus  certi  et  qui  incerti.  scientific  precision,  that  it  is  in  vain  to  hope 

§  20.  for  under  our  incongruous  system. 

No  small  portion  of  it  is  devoted  to  refuting  But  on  the  other  hand  we  are  not  without 

other    glossators    and    discutants   of    similar  compensation.      We   search    in   vain    in   the 

questions,   thus :    Ex   quibus    apparct    Curt,  pages  of  these  writers  for  the  accurate  prac- 

aliorum    scripta    neglectim,    et    perfunctoria  tical  teaching  of  our  law ;  and  we  sadly  miss 

transcurrise,   et  novam   hanc   opinionem    ex  the  sharp  analysis  of  actually  occurring  cases, 

capite   proprio   fabricasse,    §  28  ;    and   again,  which  gives  so  much  interest  and  value  to  the 

Jacobus  autem  Renal,  in  suo  confusaneo  de  great  body  of  our  jurisprudence,  making  it, 

his  tractatib.  jactat  se  novam  opinionem  atfere,  instead  of   a  mere  repository   of   theoretical 

sed   inani   prolixte  ineptis  verbositatis  fumo,  discussions,  a  faithful  portraiture  of  the  actual 

nihil  enim  prorsus  novi  adfert,  sed  post  mul-  wants,  interests,  and  jjassions  of  mankind, 
tarn  inanem  elocutionem  iu  Bart,  et  commu- 


CH.    X.]  WARRANTY    OF   TITLE.  337 

HuBERUS,  another  very  eminent  master  of  the  modern  [jJ'JD] 
civil  law,  after  defining  damages  according  to  the  civil 
law,  to  be  nothing  other  than  the  profit  lost,  or  the  injury  sus- 
tained, asstimatio  danini  illati  et  iucri  cessantis,  declares  the 
subject  to  be  controlled  by  these  three  rules :  First,  that  taken 
from  the  Code,  which  we  have  elsewhere  considered,  that  in  • 
regard  to  things  certain,  the  compensation  shall  not  exceed  the 
double.  Second,  that  the  direct,  and  not  the  remote  results  are 
to  be  accounted  for,  subject,  however,  to  the  provision  that,  in 
cases  of  fraud,  all  damage  sustained  is  to  be  made  good  ;  and 
Third,  that  in  estimating  injury,  the  general  opinion,  or  in  re- 
gard to  tilings  vendible  the  market  value,  and  not  the  partic- 
ular estimate  of  the  injured  party,  is  to  govern.  But  it  is 
doing  injustice  to  the  clear  brevity  of  the  original  to  attempt  a 
translation.  —  I.  In  casibus  certis,  ubi  de  speciebus  vel  quanti- 
tatibus  detinitis  agitur,  non  potest  excedere  duplum :  1.  un.  C. 
de  Sent,  qufe  pro  eo  quod  int.  II.  Lucrum  oportet  circa  rem 
ipsam  consistat,  in  eaque  sit  radicatum,  ut  DD.  loquuntur,  non 
foris  advenians  aut  fortuitum :  1.  21,  §3,  de  act.  empt.  Detri- 
menta  tamen  omnia  pra^stantur  si  dolus  intervenerit ;  aliter 
quanti  minoris :  1.  13,  pr.  d.  t.  de  ac.  empt.,  L  19,  §  1,  locati. 
III.  Lucri  et  damni  ratio  ex  judicio  communi,  non  affectione 
peculiar!  initur;  nam  haec  in  phantasia  hominum  consistit, 
cujus  ^stimatio  nulla  est :  1.  33,  ad  L.  Aquil.* 

He  then  proceeds  to  illustrate  these  rules.  A  party 
who  had  let  a  certain  pottery  to  another  was  unable  to  [300] 
perform  his  agreement.  The  hirer  proved  that  he  could 
have  made  in  a  year  (the  term  is  not  stated)  a  thousand  florins, 
and  recovered  that  amount.  But,  says  the  author,  he  should 
only  have  had  judgment  for  300  florins,  because  the  annual 
rent  of  the  farm  w^as  150  florins :  Quod  erat  simjalum,  et  con- 
tractus I'ocationis  est  certus,  id  est  certxe  quantitatis ;  tales 
autem  duplum  egredi  non  possunt :  quse  regula,  exclaims 
Huberus,  incredibile  est  quam  vulgo  ignota  visa  est !  f 

In  illustration  of  the  second  rule,  he  states  this  case  :  Hypoly- 
tus  ab  Arssen  had  purchased  certain  turf  pits,  with  an  agree- 
ment that  the  seller  should  give  him  the  right  of  w^ay  through 
a  certain  ditch,  requisite  to  remove  his  turf.  After  the  sale, 
however,  the  purchaser  found  that  the  seller  had  intentionally 
{per  dolum)  left  a  strip  of  earth  between  him  and  the  ditcli,  so 
that  he  could  not  use  it.  The  plaintiff  proved  that  at  the  tune 
of  the  obstruction  he  could  daily  make  forty  florins  ;  but  that 
afterwards  prices  had  fallen  to  twenty  florins,  at  which  he  had 

*  Huber.  PriBl.  Jur.  i.  405,  §  17.  t  Vol.  iii.  p.  88. 

22 


338  SALES  OF  PERSONAL  PROPERTY.  [CH.  X. 

I 

been  obliged  to  sell  his  turf.  Condemnatus  est  venditor  in  id 
quod  emptoris  interesset.  Cum  ad  taxationem  ejus  quod  inter- 
est preventum  esset,  the  plaintiff  claimed  this  sum,  namely,  the 
price  at  forty  florins,  which  greatly  exceeded  twice  the  purchase 
money  of  the  whole  land.  But  for  the  defense  it  was  con- 
tended, 1.  That  the  alleged  price  of  turf  was  extraordinary.  2. 
The  injury  was  not  sufficiently  direct,  for  the  plaintiff  might 
have  gone  round  through  the  land  of  other  parties,  or  he  could 
have  thrown  a  bridge  over  the  obstacle,  and  thus  transported 
his  turf.  3.  That  the  buyer  had  an  offer  of  32  florins,  which 
he  had  refused ;  and  that  consequently  the  seller  was  not  liable, 
unless  perhaps  for  the  expense  of  the  bridge  that  the  buyer 
might  have  made,  and  the  transportation  of  the  turf  over  it. 
Huberus  thus  answers  these  arguments :  1.  The  price  was  the 
common  one,  and  at  all  events  the  objection  was  inadmissible 
in  a  case  like  this  of  fraud.  Praeterea  per  dolum  hie  prsetex- 
tus  excludebatur.  2.  The  objection  came  too  late,  because  the 
seller  was  already  condemned  to  respond  in  damages.  As  to  the 
bridge,  it  was  not  to  be  required  that  this  idea  should  have 
suggested  itself  to  the  buyer,  nor  was  he  bound  to  resort  to 

such  an  expedient  in  case  of  fraud.  3.  The  buyer  was 
[301]  not  bound  to  receive  32  Horins  for  his  turf  at  a  time 

when  he  could  sell  them  for  40.  But  the  cause  was  de- 
cided on  the  basis  of  the  offer  of  32  florins  ;  and  Huberus 
seems  to  deplore  the  arbitrary  control  exercised  by  the  courts 
over  the  subject  of  compensation.  Quanquam  juris  igitur 
rationes,  pro  triumphante  (the  plaintiff)  militaire  viderentur, 
tamen  ut  est  hujus  rei  praxis  valde  lubrica  et  tantum  non  arbi- 
traria,  factum  est  ut  venditor  vix  ultra  quam  obtulerat  sit  con- 
demnatus." *  It  might  be  curious,  if  our  space  permitted,  to 
compare  the  decision  here  made  with  what  it  would  be  in  a 
similar  case,  say  a  conveyance  with  a  covenant  of  right  of  way, 
according  to  our  jurisprudence. 

Among  the  more  recent  writers  on  the  modem  civil  law,  we 
find  the  same  absence  of  any  definite  rule,  of  which  I  have 
already  complained.     Domat  says,t  the  seller  who  fails  to  de- 

*  Huberus,  Pra:l.  Juris,  vol.  iii.  pp.  88,  89,  devoit  etre  faite,  doit  k  I'acheteur  la  valeur 

§  30  to  35.  presente  du  jour  et  du  lieu,  pour  le  profit  qu'il 

t   Contrat  de  Vente,  Loix   Civiles,  liv.  1,  aurait  fait  en  les  y  revendant,  ou  pour  le  perte 

tit.  2,  sec.  2,  §  27.     Le   vcndeur  qui   est   en  qu'il  souffre  si  pour  son  usage  il  est  oblige 

deraeure  de    delivrer,   doit   les   dommages   et  d'en   acheter   d'autres    a   ce   prix  qui  excede 

interets  qu'aura  causes  le  retardemcnt  selon  celui  de  la  vente.     Troplong,  in  his  masterly 

I'etat  des  choses  et  les  circonstances treatise  De  la  Vente,  complains  of  the  loose- 

Ainsi  celui  qui  devoit  delivrer  k  un   certain  ness  of  Domat   on  the  subject  of  the  meas- 

jour,  dans  un  certain  lieu,  du  bled,  du  vin,  et  ure  of  damages  ;  but  the  dithculty  appears  to 

d'autres  denrees  done  le  prix  se  trouve  aug-  me  rather  to  be  in  the  system  than  in  the  au- 

meute  an  jour   et   au   lieu   oil   la  de'livrance  thor. 


CH.    X.] 


WARRANTY    OE    TITLE. 


339 


liver  must  pay  the  damages  caused  by  his  default,  according  to 
the  circumstances  of  the  case.  Thus,  he  who  contracts  to  de- 
liver any  article  of  merchandise,  the  price  of  which  rises  at  the 
time  and  place  fixed  for  delivery,  must  pay  tlie  actual  value  at 
such  time  and  place,  as  well  on  account  of  the  profit  that  tlie  pur- 
chaser woidd  have  made  by  reselling  them  there,  as  on  account 
of  the  loss  that  he  sustains,  by  being  obliged  to  purchase  other 
articles  at  a  price  exceeding  that  of  his  bargain.  So,  he  says 
that  the  purchaser  would  be  entitled  to  his  expenses  actually 
incurred  on  coming  to  receive  the  article  which  was  to  have 
been  delivered,  but  that  remote  and  unforeseen  consequences 
are  not  to  be  taken  into  consideration.  Thus,  for  instance,  if, 
the  seller  failing  to  deliver  the  commodity  at  the  time  and 
place  fixed  on,  the  purchaser  has  been  made  unable  to 
transport  them  to  another  place,  where  he  could  sell  [302] 
them  at  an  advance  ;  or  if,  by  reason  of  the  non-delivery 
of  the  article,  he  has  been  obliged  to  send  off  his  workmen, 
and  to  stop  some  work  of  which  the  cessation  causes  him  con- 
siderable injury, —  the  seller  will  not  be  considered  liable, 
neither  for  the  profit  lost  nor  the  injury  sustained ;  for  these 
consequences  are  not  to  be  imputed  to  the  default  of  delivery, 
but  result  from  the  arrangements  of  a  higher  power,  and  acci- 
dental circumstances  which  no  one  can  control.* 


*  Cont.  de  Vente,  liv.  i.  tit.  2,  sec.  2,  §  18 : 
Dans  le  meme  cas  la  depense  qu'aurait  faite 
I'acheteur,  pour  venir  recevoir  et  pour  trans- 
porter les  grains  achetes,  et  les  autres  suites 
inimcdiates  qu'on  doit  naturellcment  attendre 
du  rctardement.  Mais  on  ne  doit  pas  etendre 
les  dommages  et  interets  aux  suites  plus 
eloignees  et  imprevues,  qui  sont  plutot  un 
eiFet  extraordinaire  de  quelque  evencment  et 
de  quelque  conjoncture  que  fait  naitre  I'ordre 
divin,  que  du  retardement  de  la  de'livrancc. 
Ainsi,  ])ar  exeniple,  si  le  vendeur  ne  delivrant 
pas  au  Jour  et  an  lieu  des  grains  qu'il  a  ven- 
dus,  I'acheteur  a  manque',  par  le  de'faut  de  la 


delivrance,  de  faire  un  transport  et  un  com- 
merce de  ces  grains  dans  un  autre  lieu  oil  il 
aurait  pu  les  vendre  encore  plus  cher  que  dans 
le  lieu  oil  la  delivrance  devoit  6tre  faite ;  ou 
si,  faute  d'avoir  ces  grains,  il  a  ete'  oblige  de 
renvoyer  des  ouvriers,  et  de  feire  cesser  un 
ouvrage  dont  I'interruption  lui  cause  un  dom- 
mage  considerable,  —  le  vendeur  ne  sera  tenu, 
ni  de  ce  gain  manque  ni  de  ce  dommage  in- 
couru,  qui  ne  sent  pas  taut  des  suites  qu'on 
puisse  imputer  au  retardement  de  la  deliv- 
rance, que  des  elFets  de  I'ordre  divin,  et  des 
cas  fortuits  dont  personne  ne  doit  re'pondre. 


CHAPTER  XI. 

THE   MEASURE   OF   DAMAGES   IN   ACTIONS  GROWING  OUT    OF  THE  CONTRACT 
OF   FRINCIPAL   AND    SURETY. 

Various  Contracts  of  Suretyship.  —  Rights  resulting  from  Implied  Promise.  — 
Express  Promise  to  do  a  Particular  Act.  —  Express  Promise  to  indemnify  and 
save  harmless.  —  As  a  General  Rule,  the  Surety  cannot  make  any  Claim  against 
his  Principal  until  he  has  actually  paid  the  Debt.  — Exception  where  the  Party 
contracts  to  do  a  Particular  Thing.  —  The  Measure  of  Damages  as  affected  by 
the  IMode  of  Payment :  when  made  in  Laud  or  Property  other  than  Money  ; 
when  in  Securities.  —  What  Expenses  or  Costs  the  Surety  can  recover 
against  the  Principal.  —  Measure  of  Damages  as  between  Surety  and  Co- 
surety ;  as  between  Lessee  and  Sub-lessee. 

Contract  of  Principal  and  Surety. —  The  contract  of  surety- 
ship is  one  of  very  frequent  occurrence,  arising  in  some  cases 
by  implication  of  law,  as  between  the  parties  to  negotiable 
paper,  or  debtors  and  their  bail ;  in  others  it  is  created  by  ex- 
press agreements  of  guarantee.  These  again  sometimes  take 
the  form  of  indemnities  and  contracts  to  save  harmless,  and 
at  others  assume  the  more  binding  shape  of  express  contracts 
to  do  the  particular  thing  in  question  ;  in  which  last  case,  in- 
deed, the  peculiar  relation  of  principal  and  surety  often  ceases 
to  exist.*  ^ 

The  questions  that  ordinarily  present  themselves,  as  between 
the  principal  debtor  and  the  party  who  has  assumed  for  him  the 
obligations  of  a  surety,  relate  to  the  circumstances  which  entitle 
the  latter  to  call  for  repayment  of  any  sum  he  may  have  been 
obliged  to  pay  for  him ;  the  mode  of  that  payment ;  and  the 
collateral  expenses,  legal  or  otherwise,  of  which  he  can  demand 
reimbursement. 

*  "  In  ancient  times,"  said  Buller,  J.,  in  does  the  law  raise  such  a  promise  1    because 

Toussaint  v.  Martinant,  2  T.  R.  100,  "no  ac-  there  is  no  security  given  by  the  party.     But 

tion  could  be  maintained  fl//ait),  where  a  surety  if  the  party  choose  to  take  a  security,  there 

had  paid  the  debt  of  his  principal.    Now,  why  is  no  occasion  for  the  law  to  raise  a  promise." 

1  In  an  action  on  an  indemnity  bond,  if  the  plaintiff  states  no  special  damage  in  his  com- 
plaint, he  is  confined  in  his  recovery  to  such  only  as  arise  from  the  breach,  and  then  such  only 
as  are  proximate  and  the  fair,  legal,  and  natural  result  of  the  act  complained  of.  Hallock  v. 
Belcher,  42  Barb.  199. 


r 


CH.   XI.]  INDEMNITIES.  341 

These  questions  sometimes  arise  in  actions  by  sureties  [304] 
against  their  principals,  sometimes  in  suits  against  the 
sureties  themselves;  and  though  the  law  generally  tends  to 
favor  the  surety,  still,  so  far  as  the  construction  of  the  contract 
is  concerned,  no  difference  is  made  as  to  the  manner  in  which 
the  case  is  presented. 

There  is  another  class  of  cases  of  a  mixed  character,  where 
actions  are  brought  against  sureties  for  sheriffs,  constables,  or 
other  public  officers.  As  these  cases  involve  as  well  the  duty 
of  the  principal  as  the  contract  of  the  surety,  we  shall  defer 
their  consideration  till  we  come  to  examine  actions  against 
public  oflticers.*^  We  shall  for  the  present  confine  ourselves  to 
the  liabilities  of  principal  and  surety  as  arising  out  of  private 
contract. 

Let  us  first  bear  in  mind  the  clear  distinction  that  exists  be- 
tween two  classes  of  cases,  falling  under  the  general  head. 
"It  is  the  distinction  between  an  affirmative  covenant  for  a 
specific  thing ;  and  one  of  indemnity  against  damage  by  reason 
of  the  non-performance  of  the  thing  specified.  The  object  of 
both  may  be  to  save  the  covenantee  from  damages,  but  their 
legal  consequences  are  essentially  different."  f 

Payivient  of  Debt  Usually  Necessary  to  Surety's  Action. — In 
conformity  to  the  rule  which  we  have  had  occasion  to  notice, 
that  actual  loss  must  precede  or  create  a  right  of  action,  it  is  a 
general  rule  that  a  surety  for  the  payment  of  money  cannot 
call  on  his  principal  until  he  has  paid  the   debt.^     So  it  was 

*  Post,  ch.  xxi.  t  Gilbert  v.  Wiman,  1  Comstock,  550. 

1  The  sheriff  is  entitled  to  recover  on  a  bond  of  indemnity  given  to  him  the  full  amount  of 
a  judgment  recovered  against  him,  whether  he  be  solvent  and  actually  liable  to  pay  it  or  not. 
White  V.  Fratt,  13  Cal.'521. 

In  New  Hampshire,  in  a  suit  by  a  sheriff  on  a  bond  given  by  sureties  of  his  deputy,  con- 
ditioned to  indemnify  him  against  all  loss,  damages,  and  costs,  on  account  of  the  acts  and 
neglects  of  the  deputy,  he  is  entitled  to  receive,  as  damages,  in  addition  to  the  sums  paid  by 
him  or  his  sureties  on  his  official  bond  to  the  county  to  satisfy  judgments  recovered  against 
him  for  the  default  of  the  deputy,  and  interest  thereon,  all  such  reasonable  expenses  as  were 
incurred  by  him  in  and  about  the  defense  of  the  suits  in  which  the  judgments  were  rendered, 
including  counsel  fees  and  a  reasonable  compensation  for  his  personal  services ;  and  in  the 
suit  on  the  bond  the  same  expenses  and  compensation  for  services,  beyond  the  taxable  costs, 
but  not  the  costs  or  expenses  incurred  in  a  suit  upon  his  official  bond,  brought  to  enforce  pay- 
ment of  such  judgment ;  and  upon  a  judgment  in  favor  of  the  sheriff  for  the  penalty  of  the 
bond,  execution  ^vill  be  awarded  as  well  for  the  damages  that  may  have  accrued  subsequent  to 
the  commencement  of  the  suit  upon  the  bond,  as  for  those  prior  thereto.  Hoitt  v.  Holcomb, 
32  N.  H.  R.  185. 

So  in  New  York,  in  an  action  by  a  sheriff  against  the  sureties  of  his  deputy  to  recover 
damages  for  the  neglect  of  the  deputy  to  levy  on  execution,  in  consequence  of  which,  the 
execution  creditor  has  recovered  a  judgment  against  the  sheriff,  the  reasonable  expenses  of 
the  sheriff  in  defending  the  suit  against  himself,  are  recoverable  as  a  part  of  his  damages. 
Westervelt  v.  Smith,  2  Duer,  449. 

As  to  the  proper  measure  of  damages  in  an  action  on  a  bond  given  to  indemnify  a  sheriff 
for  sale  of  propertv  on  execution,  see  Crump  v.  Ficklin,  1  Patt.  &  H.  201. 

2  So  in  Michigan.  Thompson  i;.  Richards,  14  Mich.  172;  Hall  v.  Nash,  10  Mich.  303; 
Butler  V.  Ladue,  12  Mich.  173. 


342  PRINCIPAL    AND    SURETY.  [OH.    XI. 

early  held  by  Lord  Mansfield,  in  regard  to  a  surety  in  a  bond; 
"till  damnified,"  said  his  Lordship,  "which  he  could  not  be  till 
he  had  been  called  upon  and  had  paid,  he  could  not  bring  an 
action."*  And  so  it  has  been  held  in  New  York,  where  the 
surety  had  been  sued  and  charged  in  execution,  that  not  hav- 
ing paid  the  debt,  and  having  no  promise  to  indemnify  him, 
he  could  not  recover  against  his  principal.!  For  this  a  tech- 
nical reason  also  exists;  the  only  action  that  can  be  maintained 
in  such  case  is  assumpsit  for  money  paid,  which,  of  course,  will 
not  lie  until  money  or  its  equivalent  is  paid. 

Covenants  to  Indemnify. — Where,  however,  the  surety  holds 
an  exjDress  promise  to  indemnify  and  save  him  harmless,  there 
he   can   maintain   an   action   without  having   paid   the   debt; 

and  we  shall  presently  examine  the  extent  of  compensa- 
[305]  tion  allowed  for  the  injury  he  alleges   himself  to  have 

sustained.  $^  But  where  the  plaintiff  holds  not  merely 
an  agreement  to  indemnify  and  save  him  harmless  against  the 
consequences  of  the  default  of  the  other,  but  an  express  prom- 
ise to  pay  a  debt,  or  to  do  some  particular  act,  then  the  position 
of  the  parties  entirely  changes ;  the  relation  of  principal  and 
surety  disappears,  and  it  has  been  held,  that  the  failure  to  per- 
form the  act  agreed  on  gives  the  plaintiff  a  right  of  action, 
even  before  he  has  suffered  any  direct  damage  himself;  and  so 
it  has  also  been  decided  as  a  rule  of  pleading.  ^ 

Where  the  defendant  agrees  to  discharge  the  plaintiff  from 
any  bond  or  other  particular  thing,  there  the  defendant,  hav- 
ing agreed  to  do  a  particular  act,  cannot  plead  non  damnifica- 
tus  ;    but  where  the  condition  is  to  discharge  the  plaintiff  from 

*  Taylor    v.   Mills,    Cowp.    525;    Paul   v.  bail  of  the  deinity-shcrifFare  not  liable  unless 

Jones,  1  T.  R.  599  ;  Powell  v.  Smith,  8  J.  R.  the  sheriff  has  been  damnified  or  made  legally 

249;  Rodman  v.  Hedden,  10  Wend.  498.  liable  in  consequence  of  the  dereliction  of  the 

t  Powell  t;.  Smith,  8  J.  R.  249.  deputy.      Hughes   v.    Smith,   5   Johns.    168; 

X  Rodman  v.  Hedden,  10  Wend.  498.     The  Rowe  v.  Richardson,  5  Barb.  S.  C.  R.  385. 

1  On  a  covenant  to  indemnify  against  all  damages,  costs,  and  expenses,  by  reason  of  a  de- 
mand, the  surety  is  not  liable  for  a  premium  or  bonus  which  the  party  is  compelled  to  pay  to 
raise  the  amount  necessary  to  meet  the  demand.  Law  v.  Archer,  2  Kern.  277.  See  Scott  v. 
Tyler,  14  Barb.  202;  Lathrop  v.  Atwood,  21  Conn.  117  ;  Hallock  v.  Belcher,  42  Barb.  199. 

^  And  in  such  case  it  seems  the  measure  of  damages  is  the  amount  of  debts  provided  for 
in  the  agreement.  Ham  v.  Hill,  29  Mo.  (8  Jones)  275.  The  rule  above  given,  and  criticised 
below  (see  p.  306,  et  seq.),  was  rigidly  maintained  by  the  Supreme  Court  of  the  United  States 
in  a  late  case.  Wicker  v.  Hoppock,  6  Wallace,  94.  In  that  case  the  defendant  agreed  that  if 
the  plaintiff  would  prosecute  a  claim  against  a  third  party  and  obtain  judgment  and  levy  on 
the  property,  he,  the  defendant,  "  would  bid  it  off  for  whatever  the  judgment  and  costs  might 
be."  This  he  did  not  do,  and  the  property  was  knocked  down  to  the  plaintiff  for  a  nominal 
sum.  Suit  was  then  brought  for  the  breach  of  the  agreement,  and  the  court  held  the  defendant 
liable  for  the  full  amount  of  the  judgment,  with  interfest  and  costs.  This  riding  the  Supreme 
Court  affirmed,  after  a  full  consideration,  notwithstanding  the  fact  that  the  plaintiff  would 
apparently  by  this  decision  be  able  to  make  use  of  the  two  judgments,  and  thus  might  recover 
more  than  the  amount  of  his  claim.     See  argument  of  plaintiii'  in  error,  p.  95. 


en.    XI.]  INDEMNITIES.  343 

damage  by  reason  of  any  particular  thing,  or  to  indemnifij  and 
save  harmless,  there  the  damage  must  l)e  shown,  i\\\(\  conse- 
quently non  danuiijicatus  is  a  good  plea.*  ^  80  in  New  York, 
where  the  plaintiff  as  lessee  of  a  term  of  years  had  assigned 
it  to  the  defendant,  who  executed  a  covenant  to  pay  the  rent 
to  the  head  landlord,  it  was  insisted  only  on  the  part  of  the 
defendant,  that  the  plaintiff  could  only  recover  nominal  dam- 
ages, unless  he  showed  that  he  paid  the  rent ;  but  the  court 
said,  "  The  covenant  is  express  and  positive  that  the  defend- 
ant will  pay  the  rent ;  and  it  would  be  against  all  reason  and 
justice  to  say  that  the  plaintiff  shall  himself  pay  and  advance 
the  money  before  his  right  of  action  against  the  defendant  to 
recover  it  arises;"  and  the  rent  was  held  to  be  the  measure  of 
damages.!  ^ 

So  again  in  the  same  State,  if  one,  by  bond,  guarantees  that 
a  third  party  shall  pay  a  certain  sum  of  money  by  a  given 
day,  on  demand,  the   plaintiff  must  assign  the  non-payment  of 

*  Cutler  V.  Southern,   1   Saund.  116,  note  t  Port  v.  Jackson,  17  J.  R.  2.39;  S.  C.  in 

1;  Holmes   v.   Rhodes,    1    Bos.  &  Pul.  638;  Error,  Ibid.  479.     See  Toussaint  i'.  Martinant, 

Hodgson  V.  Bell,  7  T.  R.  97;  Port  v.  Jack-  2  T.  R.  100;  Martin  v.  Court,  2  T.  R.  640; 

son,  17  J.  R.  239;    S.  C.  affirmed  in  Error,  Hodgson   v.  Bell,  7  T.  R.    97;   Atkinson   v. 

Ibid.   479 ;    Thomas   v.   Allen,    1    Hill,    145.  Coatsworth,  8  Mod.  33. 
These  two  last  cases  overrule  that  of  Doug- 
lass t'.  Clarke,  14  J.  R.  177. 

1  Redfield  v.  Haight,  27  Conn.  31.  If  the  instrument  be  a  contract  of  indemnity  merely, 
there  must,  to  maintain  the  action,  be  absolute  damage  before  it  is  brought.  If  it  be  a  guar- 
anty, the  action  lies  when  the  thing  guai'anticd  against  is  done,  whether  there  be  actual  dam- 
age or  not.  But  in  the  latter  case  the  instrument  will  be  strictly  construed,  and  in  the  case  of 
a  guaranty  against  the  plaintiff's  debts,  the  defendant  was  held  not  liable  i'or  the  costs  to 
which  the  plaintiff  had  been  subjected,  but  might  have  avoided  by  paying  the  debts  himself. 
Ibid. 

'^  The  following  late  case  in  the  English  Exchequer  appears  to  us  to  carry  the  measure  of 
redress  in  this  class  of  cases  to  an  extreme,  if  not  exceptional  extent.  On  principle,  it  can  be 
sustained  only,  we  think,  with  extreme  deference,  on  the  ground  that  contracts  made  without 
fraud  must  be  maintained  ;  and  not  only  as  giving  the  plaintiff  compensation  for  a  loss  he  had 
not  sustained,  but  doing  this  contrary  to  the  real  intent  of  the  parties  in  executing  the  contract, 
appears  to  us  to  present  a  case  where  relief  might  have  been  obtained  in  equity. 

One  Jennings  had  bequeathed  to  the  children  of  his  granddaughter,  a  Mrs.  Button,  on  her 
death,  a  legacy  of  .£400,  to  be  paid  ut  the  age  of  twenty-one  to  the  survivors  who  reached  that  age, 
and  the  testator  devised  part  of  his  estate  charged  with  the  legacy,  in  moieties  to  his  two  daughters; 
and  the  plaintiff  as  heir  at  law  to  one  of  the  daughters,  who  had  then  died,  effected  a  partition 
of  the  estate  with  the  other  daughter,  each  covenanting  with  the  other  to  pay  half  the  legacy. 
The  plaintiff  subsequently  sold  his  part  to  the  defendant  subject  to  the  payment  by  the  defend- 
ant of  one  moiety  of  the  legacy  to  W.  H.  Parker,  the  only  surviving  child  of  Mrs.  Button, 
who  was  dead,  on  his  attaining  the  age  of  twenty-one,  or  to  his  personal  representatives  in  case 
of  his  death  under  age,  and  the  defendant  covenanted  with  the  plaintiff  to  pay  such  moiety, 
and  indemnify  the  plaintiff  against  all  liability  on  account  of  it.  Parker  died  under  twenty- 
one,  and  his  .administrator  claimed  a  moiety  of  the  legacy,  which  the  plaintiff,  claiming  it  him- 
self, notified  the  defendant  not  to  pay.  A  "bill  having  been  filed  by  Parker's  administrator  to 
compel  the  payment  of  the  legacy  to  him  by  the  plaintiff,  it  was,  on  the  ground  that  the  legacy 
was  no  longer  a  charge  on  his  estate,  dismissed  with  costs,  though  the  plaintiff  had  to  pay 
some  costs  as  between  attorney  and  client.  The  plaintiff  having  brought  an  action  on  the 
covenant  .alleging  as  breaches  the  non-p.ayraent  of  the  moiety  to  Parker's  personal  representa- 
tive and  the  non-indemnity  of  the  plaintiff,  whereby  the  plaintiff  incurred  costs,  it  was  held  by 
all  the  judges  that  the  plaintiff  was  entitled  to  not  merely  nominal  damages,  but  to  the  full  in- 
demnity, including  the  £200  and  the  costs  paid  by  the  plaintiff.  Hodgson  v.  Wood,  2  Hurl. 
&  Colt.  Exch.  649;  S.  C.  33  Law  R.  (N.  S.)  Exch.  76. 


344  PRINCIPAL   AND    SURETY.  [CH.    XI. 

[306]  the  money  by  the  third  party  as  a  breach  of  the  condition 
of  the  bond  sued  on,  but  he  is  not  bound  to  give  any 
further  evidence  of  the  extent  of  his  damages,  the  instrument 
itself  fixing  the  amount  he  is  entitled  to  recover ;  and  it  was 
so  held  against  the  defendant,  who  insisted  that,  in  the  absence 
of  such  evidence,  the  jjlaintiff  could  only  recover  nominal  dam- 
ages.* ^ 

And  a  similar  decision  has  been  recently  made  in  the  Eng- 
lish Exchequer.!  The  defendant  was  indebted  to  H.  D.  and 
G.  B.  in  the  sum  of  £400,  secured  by  a  promissory  note 
made  by  the  defendant,-  and  by  the  plaintiff  as  the  defend- 
ant's surety ;  and  thereupon  the  defendant  covenanted  that 
he  ivould  pay  H.  D.  and  G.  B.  the  sum  of  £400,  on  or  be- 
fore the  thirteenth  of  August  then  next;  breach,  non-pay- 
ment by  the  day.  On  the  trial  it  appeared  that  the  plain- 
tiff had  been  notified  that  he  would  be  held  liable  on  the 
note ;  but  the  note  was  not  paid,  and  the  defendant  insisted 
that  the  plaintiff  was  only  entitled  to  nominal  damages. 
The  Lord  Chief  Baron  Aljinger  overruled  the  objection ;  and 
the  plaintiff  had  a  verdict  for  the  note  and  interest.  On 
showing  cause  why  there  should  not  be  a  new  trial,  this 
was  held  right.  Alderson,  B.,  said,  '^  To  what  extent  has 
the  plaintiff  been  injured  by  the  defendant's  default  ?  Cer- 
tainly to  the  amount  of  the  money  that  the  defendant  ought 
to  have  paid  according  to  his  covenant ; "  and  he  likened  it 
to  an  action  of  trover  for  title  deeds.$ 

But  I  am  obliged  to  say  that  these  decisions  appear  to  me 
somewhat  to  conflict  with  the  important  and  fundamental 
rule  which  has  been  already  stated,  that  actual  compensa- 
tion will  not  be  given  for  merely  probable  loss.§  ^     Nor  is  the 

*  Mann  v.  Eckford's  Ex'rs,  15  Wend.  502  ;  an  action  brought  on  a  covenant  to  discharge 

Ex-parte  Negus,  7  Wend.  499.  an  existing  incumbrance,  the  plaintiff  was  en- 

t  Loosemore  v.  Radford,  9  Mees.  &  Wels.  titled  to  recover  the  full  amount  of  the  incum- 

657.  brancc,  though  nothing  had  been  paid.     Leth- 

X  Upon  the  analogy  of  these  decisions  the  bridge    v.   Mytton,  2    B.  &   Aid.   772 ;    ante, 

case   is   probably  to  be  upheld  which  I  have  188. 

elsewhere  cited,  where  it  was  decided  that  in  §  Ante,  43  and  241. 

1  Where  the  defendant  had  engaged  "  to  pay  and  satisfy  the  mortgage  together  with  all 
interest  and  costs  thereon  accrued,  accruing,  and  to  accrue,  and  in  every  respect "  save  the 
plaintiff  harmless,  the  value  of  the  land  sold  in  consequence  of  the  breach  of  tliis  engagement 
was  held  the  measure  of  the  plaintiff's  damages.     Athcrton  v.  Williams,  19  Ind.  105. 

'^  In  a  late  English  case  it  appeared  that  the  plaintiffs  lent  the  defendant  £600  on  the 
security  of  an  indenture  by  which  two  policies  on  the  defendant's  life  were  charged  with  the 
loan.  In  the  indenture  the  defendant  covenanted  to  pay  the  premiums  on  the  policies,  which 
would  become  void  unless  they  siiould  be  annually  paid.  'The  defendant  paid  the  first  pre- 
mium only,  and  the  plaintiffs  sued  him  on  his  covenant  for  non-payment  of  three  years'  pre- 
miums. Held,  as  it  did  not  appear  the  plaintiffs  had  sustained  any  loss,  they  were  entitled  to 
nominal  damages  only.  The  National  Assurance  and  Investment  Association  v.  Best,  2  H.  & 
N.  (Exch.)  605. 


CH.    XI.]  INDEMNITIES.  345 

argument  that  the  party  having  hound  himself  to  flo  a  partic- 
uLar  act  must  therefore  be  held  lial)le  in  the  full  amount, 
of  greater  weio-ht.^  There  is  a  multitude  of  contracts  of  the 
same  character,  to  which  no  such  doctrine  is  applied.  If, 
instead  of  a  contract  to  pay  a  certain  sum  of  money, 
the  agreement  be  to  do  any  other  particular  act,  an  in-  [307] 
quiry  is  indispensable  to  ascertain  how  far  the  party 
plaiutifl'  has  been  damnified  l)y  the  nonfeasance.  It  is,  perhaps, 
no  great  stretch  of  reasoning  to  say  that  the  damages  arising 
from  the  non-payment  of  mone}^  should  be  measured  by  the 
sum  itself.  Still,  a  doubt  may  often  arise  whether  the  jtarty 
who  holds  ihe  agreement  has  been  injured  to  that  extent;  and 
this  is  well  pointed  out  by  a  very  accurate  judge,  in  the  case 
last  cited.  Parke,  B.,  said,  "  The  defendant  may,  perhaps,  have 
an  equity,  that  the  money  he  may  pay  to  the  plaintiff  shall 
be  applied  in  discharge  of  his  debt ;  but,  at  laiv,  the  plaintiff  is 
entitled  to  be  placed  in  the  same  situation,  under  this  agree- 
ment, as  if  he  had  paid  the  money  to  the  payees  of  the  bill." 
This  remark  of  a  very  acute  judge  states  the  evil,  but  suggests 
no  remedy.  The  law  is  thus  carried  into  execution  unattended 
by  the  equity  which  should  temper  it.  It  is  one  only  of  many 
instances  illustrating  the  inconvenience  and  serious  hardships 
that  often  flow  from  the  separation  of  the  jurisdictions.  Either 
the  plaintiff  should  only  be  allowed  to  recover  for  actual  loss ; 
or  if  the  court  proceed  upon  the  idea  of  compelling  the  defend- 
ant specifically  to  perform  his  promise,  it  should  carry  the  en- 
gagement into  full  execution,  by  applying  the  proceeds  of  the 
judgment  where  they  belong.  This  a  court  of  law  possesses 
no  power  to  do  ;  and  as  it  is  incompetent  to  do  complete  justice, 
it  should  confine  its  remedies  exclusively  to  those  cases  where 
actual  injury  appeals  for  redress. 

Compensation  should  be  for  Actual  Loss  only.  —  So  long  as 
the  original  division  line  between  the  common  law  and  equity 
is  preserved,  any  rule  by  which  actual  damages  are  given  where 
no  actual  loss  is  sustained,  has,  in  truth,  no  other  effect  than  to 
engraft  on  the  courts  of  law  a  species  of  specific  performance, 


^  The  principle  contended  against  was  very  strictly  adhered  to  in  a  late  case  in  Connecticut, 
against  bail,  in  a  manner  which  seems  to  conflict  with  the  principle  of  compensation  for  actual 
loss  only.  A  judgment  had  been  recovered  against  a  husband  and  wife  in  an  action  of  slander 
for  words  spoken  by  her,  and  on  execution  no  goods  were  found,  and  the  husband  having  been 
taken  upon  it  was  subsequently  discharged  as  a  poor  debtor,  and  the  wife  escaped  from  the 
jurisdiction.  It  was  held  that  although  she  had  no  estate,  separate  or  otherwise,  the  bail  was 
liable  for  the  amount  of  the  original  judgment,  with  interest  from  the  time  of  non  est  on  the 
execution,  besides  the  costs  of  the  execution.     Hall  v.  White,  27  Conn.  488. 


346  PRINCIPAL    AND    SURETY.  [CH.    XL 

irregular  and  illegitimate ;  and  which  neither  their  forms  of 
procedure,  nor  the  general  arrangement  of  their  system,  enable 
them  to  exercise  without  great  danger  of  injustice  and  abuse. 
The  rule  should  be  considered  cardinal  and  absolute,  that  actual 
compensation  shall  only  be  given  for  actual  loss.^ 

It  appears  upon  the  whole,  settled,  that  if  the  engagement  be 
collateral,  or  more  properly  speaking  indirect,  whether  only  im- 
plied in  law,  or  whether  it  be  an  undertaking  to  indemnify  and 
save  harmless  against  the  consequences  of  the  default,  there 
damage  to  be  recovered  must  be  proved.     And  so  it  is  held, 

whether  the  action  be  by  the  surety  against  the  principal, 
[308]  or  by  the  creditor  against  the  surety.    In  a  case  at  Nisi 

Prius  before  Lord  Ellenborough,  on  a  bond  conditioned  to 
indemnify  the  plaintiff  against  a  bond  given  by  him  to  a  third 
party,  though  if  did  not  appear  that  he  had  paid  it,  his  Lordship 
said  that  he  did  not  see  any  measure  of  damages  except  the 
penalty  of  the  bond ;  and  the  jury  so  found.*  But  this  is  not 
the  result  of  the  more  recent  authorities  of  the  courts  in  this 
country.  In  an  early  case,  the  question  "  whether  on  an  escape 
the  bail  to  the  Hberties  became  liable  for  the  whole  penalty,  or 

*  Wood  V.  Wade,  2  Starkie,  166. 

1  See  Willson  v.  McEvoy,  25  CaL  169,  where  the  cases  are  reviewed  and  the  language  of  the 
text  is  approved. 

And  where  the  plaintiffs  had  sold  the  defendants  three  sixteenths  of  a  steamboat,  the  rest  of 
which  was  owned  by  third  parties,  taking  from  the  defendants  an  agreement  to  idemnify  them 
against  "  all  liability  or  loss  "  on  account  of  debts  of  the  boat,  it  was  held,  in  an  action  brought 
by  the  plaintiffs  to  recover  the  amount  of  a  judgment  against  them  for  a  debt  of  the  boat,  that 
they  could  not  I'ccover  more  than  three  sixteenths  of  it  until  they  had  shown  that  they  could 
not  compel  the  other  part  owners,  because  of  insolvency  or  for  some  other  good  cause,  to  con- 
tribute their  proportion.     Ewing  v.  Reilly,  34  Mo.  113. 

But  where  one  of  a  firm,  having  on  its  dissolution  undertaken  to  collect  its  outstanding 
claims,  gave  his  bond  to  pay  all  demands  against  it,  and  save  the  other  partner  and  his  sureties 
and  indorsei's  on  account  of  said  firm  harmless,  it  was  held  that  the  obligee  could  recover  on 
the  bond  the  amount  of  the  partnership  debts  existing  due  and  unpaid,  and  that  the  creditors 
of  the  firm  were  entitled  to  the  benefit  of  the  covenant.  Devol  v.  Mcintosh,  23  Ind.  .529.  See 
also.  Ham  v.  Hill,  29  Mo.  275,  and  Wilson  v.  Stillwell,  9  Ohio  St.  467,  where  the  same  rule 
was  adojited.  In  the  latter  case  the  union  of  the  equity  and  law  jurisdictions  under  the  Ohio 
code  was  considered  to  meet  the  objections  of  the  text  to  such  a  recovery,  the  force  of  which  is 
fully  acknowledged. 

The  plaintift'  entered  into  a  partnership  with  A  &  B  on  condition  that  they  should  furnish 
security  as  to  the  state  of  the  firm.  The  defendant  covenanted  with  the  plaintifi"  that  the 
amount  due  the  old  firm  should  not  be  less  than  a  sum  specified,  and  that  the  debts  of  the  firm 
should  not  exceed  a  certain  sum.  It  appearing  that  the  debts  exceeded  the  amount  specified, 
but  also  that  less  than  that  amount  had  been  paid  on  account  of  the  liabilities  of  the  old  firm, 
it  was  held  that  the  defendant's  covenant  was  a  contract  of  idemnity  only,  but  that  the  plaintiff 
was  entitled  to  recover  as  damages  the  actual  loss  which  he  had  sustained  by  reason  of  the  de- 
fendant's breach  pf  covenant ;  and  that  the  amount  of  such  damage  was  purely  a  question  for 
the  jury.     Walker  v.  Broadhurst,  22  Eng.  L.  &  E.  587  ;  S.  C.  8  Exch.  889. 

In  a  covenant  between  A  &  B  it  was  stipulated  that  A  should  pay  all  costs  and  damages 
caused  by  neglect  or  default  on  his  part  in  relation  to  the  terms  of  the  covenant.  In  an  action 
brought  by  B  for  breach  of  the  covenant,  no  evidence  being  given  of  any  actual  damage  sus- 
tained by  him,  but  only  evidence  as  to  the  value  of  the  properties  intended  to  be  conveyed,  it 
was  held  that  he  was  entitled  to  damages  eqiuvalent  to  the  benefit  he  might  have  lost,  or  to  the 
loss  he  might  have  sustained  by  the  non-pci'formance  of  the  covenant.  Crommelin  v.  Marquis 
of  Donegal,  3  Irish  Law  R.  (2d  series)  434. 


CH.    XI.]  INDEMNITIES.  347 

for  the  damages  sustained  by  the  sheriff  by  reason  of  the  es- 
cape?" was  raised  in  New  York,  but  not  decided*  But  it  was 
soon  after  said  that  neither  the  sheriff  nor  his  assignee  could  re- 
cover without  showing  injury  sustained,  and  that  consequently, 
recapture  after  the  escape,  or  a  voluntary  return,  was  an  answer 
to  a  suit  against  the  sureties  for  the  liberties.!  ^ 

The  subject  has  been  involved  in  some  doubt  by  various 
decisions,  which  have  confounded  the  right  of  action  with  the 
measure  of  damages,  and  both  these  questions  again  with  that 
of  the  evidence  necessary  to  prove  the  claim.  Thus  it  has  been 
sometimes  held  that  the  record  of  judgment  against  the  surety 
is  conclusive  evidence  against  his  principal,  and  fixes  the  amount 
of  recovery.  So  in  an  action  by  the  sheriff  against  the  sureties 
in  a  bond  to  the  jail  liberties,  it  was  held  that  the  sheriff,  having 
given  notice  to  the  defendants  of  the  escape  suit  against  him- 
self, and  they  having  thereupon  assisted  in  its  defense,  the 
record  of  the  recovery  in  that  suit  was  conclusive  evidence  that 
the  plaintiff  had  been  damnified  to  the  extent  of  the  judgment.^ 
So  again,  in  an  action  by  overseers  of  the  poor  on  an  order  of 
bastardy  to  recover  against  the  putative  father  the  weekly  sum 
directed  to  be  paid  for  the  maintenance  of  the  child,  the  order 
was  held  to  be  prima  facie  evidence  of  the  demand,  and  that  it 
rested  with  the  defendant  to  show  himself  exonerated  from  the 
payment,  in  order  to  avoid  the  recovery.§ 

On  this  subject  a  few  observations  may  be  permitted. 
A  judgment  against  the  surety  may,  upon  the  ground  of  [309] 
privity,  be  proper  evidence  against  the  principal,  and  vice 
versa  ;  but  it  is  manifest  that  the  record  can  only  be  evidence  of 
the  facts  which  it  declares,  and  that  payment  is  not  one  of  these. 
The  judgment,  though  perhaps  conclusive  evidence  of  the  debt 
being  incurred,  is  no  proof  whatever  that  that  debt  has  been  paid 
or  that  it  ever  will  be.^ 

*  Janscn  v.  Hilton,  10  J.  11.  549.  by  contract,  for  the  faithful  performance  of 
t  Barry  v.  Mandall,  10  J.  R.  563.  the  duty  of  another,  a  judij^mcnt  against  that 
X  Kipp  V.  Brigham,  6  J.  R.  158.  other  for  a  failure  in  the  performance  of  such 
§  Wallsworth  v.   Mead,  9  J.  II.  .367.  "A     duty,  if  not  collusive,  is  prima  facie  evidence 

judgment   against  the  person  to  be  indemni-  in  a  suit  against  the  party  so  responsible  for 

fied,  if  fiiirly  obtained,  especially  if  obtained  the  other."     City  of  Lowell  y.  Parker,  10  Met. 

on  notice  to  the  warrantor,  is  admissible  in  a  309.      See  also.  Head  v.  Lodge,  20  Pick.  53; 

suit  against  him  on  his  contract  of  indemnity."  Train  v.  Gold,  5  Pick,  308;  Foxcroft  v.  Ncv- 

Clark   V.    Carrington,    7    Cranch,    308,    322.  ens,  4  Greenl.  72 ;  Hayes  v.  Seaver,  7  Greeul. 

"  When  one  is  responsible  by  force  of  law,  or  237. 

1  In  an  action  by  a  sheriff  against  a  surety  in  an  indemnity  bond  given  on  an  attachment, 
he  is  entitled  to  I'ecover  the  whole  amount  of  costs  paid  by  him  in  the  successful  defense  of 
an  action  brought  against  him  by  a  claimant  of  the  goods  attached,  and  not  merely  a  propor- 
tionate share,  though  other  creditors  who  did  not  indemnify  received  the  surplus  proceeds  of 
the  goods  attached,  after  satisfying  the  indemnifying  creditors.  Chamberlain  v.  Beller,  18  N. 
Y.  115. 

*  See  Lyon  v.  Northrup,  17  Iowa,  314. 


348  PRINCIPAL   AND    SURETY.  [CH.    XI. 

New  York  Decisions. — In  a  case  in  New  York,  this  erro- 
neous view  of  the  subject  was  carried  to  a  great  length ;  and  it 
is  desirable  carefully  to  notice  the  decision,  and  those  by  which 
it  has  been  since  overruled ;  for  unless  we  adhere  strictly  to  the 
principle  that  actual  compensation  shall  only  be  awarded  for 
actual  loss,  we  are  without  any  guide  whatever  in  this  branch  of 
the  law.  Suit  was  brought*  by  the  overseers  of  the  poor  against 
the  sureties  in  a  bond  given  by  the  father  of  an  illegitimate 
child,  before  its  birth,  to  save  harmless  and  indemnify  the  town 
against  all  expenses  by  reason  of  the  child.  After  the  birth,  an 
order  was  made  by  two  justices,  according  to  the  statute,  fixing 
the  amount  of  the  defendant's  liability.  It  was  insisted  that 
this  order  was  competent  evidence  against  the  defendant,  and 
that  the  town  was  not  bound  to  show  the  actual  expenditure  of 
the  sum  claimed ;  and  it  was  so  held  by  the  Court  of  Errors. 
Jones,  C,  said  :  — 

"  It  was  urged  as  the  general  rule,  applicable  to  contracts  of  indemnity,  that 
the  party  who  is  to  be  indemnified  cannot  maintain  an  action  on  the  contract 
against  the  indemnifier  until  he  has  been  damnified.  But  that  rule  does  not 
necessarily,  and  in  all  cases,  require  the  actual  payment  of  the  damages  or  ex- 
penses incurred  to  enable  the  party  to  sue  for  and  recover  the  indemnity. 
When  the  obligation  is  to  indemnify  against  damages  or  expenses,  and  the 
obligee  has  become  absolutely  bound  and  liable  to  pay  the  expense  or  damage 
incurred  by  the  charge,  and  his  demand  against  his  obligor  upon  the  bond  of 
indemnity,  by  reason  of  the  charge  against  himself,  is  reduced  to  a  certainty,  it 

would  surely  be  just  and  reasonable,  and  would  violate  no  principle  of 
[3101   law,  to  permit  him  to   enforce  his   own  demand  against  his  obligor  in 

the  first  instance,  and  before  he  satisfies  the  charge  against  himself.  It 
is  an  operation  which  avoids  circuity,  and  essentially  subserves  the  purposes  of 
justice  and  equity,  by  enabling  him  who  is  entitled  to  the  indemnity  to  obtain 
the  means  to  satisfy  the  charge  he  has  incurred  from  the  party  who  ought  to 
bear  it,  and  thereby  save  himself  the  necessity  of  an  advance  and  payment  out 
of  his  own  funds  and  estate,  which  might  be  inconvenient,  and  perhaps  involve 
him  in  serious  embarrassments."  f     •     •     •     • 

"  If  there  had  been  no  adjudication  against  the  father,  assessing  the  amount 
he  should  pay  for  the  indemnification  of  the  plaintiffs,  and  there  had  been  no 
admission  in  pleading  of  the  amount  demanded,  other  evidence  might  have  been 
necessary  to  enable  the  jury  to  assess  the  damages ;  but  the  plaintiffs  might  in 
such  case  have  shown  that  the  father  had,  with  the  consent  and  concurrence  of 
his  sureties,  agreed  to  pay  a  weekly  or  monthly  sum  for  the  maintenance  of  the 
child,  and  on  the  principle  of  the  case  of  Hays  v.  Bryant,$  have  recovered  that 
sum  for  their  indemnity  against  the  charge  ;  or,  as  I  apprehend,  it  would  have 

*  Rockfeller  v.  Donnelly,  8  Cowen,  62l  and         t  Page  648. 
639.  '  J  1  H.  Bl.  253. 


CH.   XI.]  JUDGMENTS   RECOVERED.  349 

been  sufficient  for  them  to  show  what  sum  was  reasonably  necessary  for  the  sup- 
port of  the  cliikl  (luiiiig  the  time  it  had  been  chargeable  to  them  ;  and  for  that 
sum,  if  the  child  was  shown  to  have  been  provided  for  by  their  procurement,  the 
jury  would  liave  been  warranted  in  giving  their  verdict.  Other  cases  might  be 
put:  the  town,  for  example,  may  have  an  establishment  upheld  by  a  common 
fund,  or  supplied  by  the  contrihutions  of  the  inhabitants  in  money  or  provisions, 
for  the  maintenance  and  support  of  those  who  are  chargeable  to  it,  and  where 
provision  is  made  for  illegitimate  children  as  well  as  paupers  ;  or  the  infant  may 
be  left  with  the  mother  by  the  overseers  of  the  poor,  under  some  arrangement 
with  her  for  a  reasonable  allowance  for  its  support ;  or  expenses  may  be  incurred 
for  its  maintenance,  which,  from  want  of  means,  or  from  forbearance  or  other 
causes,  remain  unpaid.  In  none  of  these  supposed  cases,  each  of  which  may 
occur  and  is  within  the  scope  of  probability,  would  there  be  an  expenditure  or 
actual  payment  of  money  ;  and  could  it  be  pretended  that  in  any  one  of  them  the 
overseer  of  the  poor  would  be  disabled,  by  that  cause,  from  recovering  a  reason- 
able and  just  compensation  for  the  maintenance  of  the  child  ?  The  measure  of 
damages  might,  in  some  of  these  cases,  be  attended  with  difficulties,  which  might 
sometimes  be  insuperable ;  but  the  right  of  the  plaintiffs  to  compensation  for  the 
use  of  those  who  might  have  a  claim  upon  them  for  the  maintenance  of  the 
child,  and  thus  enabling  them  to  satisfy  the  charge,  would  be  undeniable,  and 
the  difficulty  of  the  remedy  alone  would  obstruct  it.  In  the  present  case  the 
overseers  of  the  poor,  to  obviate  all  difficulties  on  that  point,  have  had  the  pre- 
caution to  obtain  the  further  relief  provided  by  the  act,  in  an  order  of  bastardy, 
by  which  the  weekly  contribution  of  the  reputed  father  to  the  overseers  for  the 
support  of  the  child,  is  judicially  and  conclusively  settled  and  determined.  This 
adjudication  was  in  evidence,  and,  in  my  judgment,  it  was  conclusive  upon  both 
the  father  and  his  sureties,  as  the  rule  of  damages  in  the  action  on  the  bond."  * 

It  will  be  observed  that  here  the  covenant  was  merely  [311] 
to  indemnify  and  save  harmless,  and  did  not  reach  to  the 
extent  of  a  promise  to  do  the  thing  in  the  first  place.  It  is  to 
be  noticed,  also,  that  the  whole  scope  of  this  reasoning  is  op- 
posed to  the  general  rule  that  actual  compensation  will  only  be 
given  for  actual  loss,  and  cannot  be  supported  but  on  the  idea 
that  a  court  of  law  is  to  assume  the  powers  of  a  court  of  equity, 
and  compel  an  imperfect  kind  of  specific  performance.  If  this 
doctrine  were  maintained,  covenantors  against  incumbrances 
would  be  compelled  to  pay  before  the  incumbrance  was  dis- 
charged; covenantors  for  quiet  enjoyment  would  be  obliged  to 
pay  before  eviction ;  and  all  parties  agreeing  to  do  a  specific 
thing,  would  be  mulcted  in  the  sum  equivalent  to  performance, 

*  The  same  point  was  again  decided  in  the  law ;  "  and  it  is  there  said  to  be  for  the  same 

People   V.    Corbett,   8   Wend.    520.      But   in  reason  that  in  a  chxim  against  the  sheriff'  on 

Churchill  ;;.  Hunt,  3  Dcnio,  321,  these  decis-  bonds  for  the  jail  liberties,  it  is  unnecessary 

ions  are  said  to  rest  entirely  on  the  spirit  and  to  prove  damage.     Kip  v.  Brigham,  7  J.  R, 

intent  of  the  statute,  "  giving  these  bonds  an  168. 
effect  which  they  would  not  have  at  common 


350  PRINCIPAL    AND    SURETY.  [CH.    XI. 

without  any  proof  whatever  that  the  other  party  had  been  in- 
jured, or  that  his  position  was  such  that  he  could  be. 

The  doctrine  of  this  case  is,  however,  far  from  being  recog- 
nized as  law.  In  a  subsequent  case,  in  the  same  State,  on  a 
bond  "to  save  harmless  and  indemnify  against  all  damages, 
costs,  and  charges,  to  which  the  plaintiff's  intestate  might  be 
subjected,  or  hecome  liable  for  ^'  it  was  said  by  the  Supreme  Court, 
"  There  is  no  doubt  as  to  the  general  proposition  that  in  order 
to  recover  on  a  mere  bond  of  indeinnUy,  actual  damage  must  be 
shown  ;  if  the  indemnity  be  against  the  payment  of  money,  the 
plaintiff  must,  in  general,  prove  actual  payment,  or  that  which 
the  law  considers  equivalent  to  actual  payment ;  but  if  the  in- 
demnity be  not  only  against  actual  damage  or  expense,  but  also 
against  any  liaUlity  for  damages  or  expenses ;  then  the  party 
need  not  wait  till  he  has  actually  paid  such  damages,  but  his 
right  of  action  is  complete  when  he  becomes  legally  liable  for 
them."  And  on  the  ground  that  the  bond,  before  the  court, 
was  against  liahility,  the  plaintiff  was  allowed  to  recover."  *  ^ 

In  a  recent  case  on  an  agreement  to  indemnify  and  save 
harmless  against  a  certain  demand,  a  judgment  having  been 
recovered  on  the  claim  in  question  against  the  plaintiff,  but 
nothing  having  been  paid  thereon,  the  case  of  Rockfeller 
[312]  V.  Donnelly  was  pronounced  "  a  very  questionable  "  one ; 
and  judgment  was  given  for  the  defendant,  the  court 
saying,  "This  is  not  an  agreement  to  indemnify  against  liability, 
but  it  is  the  common  case  of  an  agreement  to  indemnify  against 
the  claim  or  demand  of  a  third  person ;  and  before  the  plaintiff 
can  recover,  he  must  show  that  he  has  been  damnified ;  the 
mere  fact  that  the  demand  has  changed  its  form  by  having 
passed  into  a  judgment,  is  not  enough."  f 

In  a  still  more  recent  case  where  a  bond  was  given  "  to  save 
harmless  and  indemnify  the  plaintiffs  against  their  liahility  as 
makers  of  a  certain  note,  and  to  pay  or  cause  to  he  paid  the  said 
note,  it  was  held  that  the  plaintiffs,  though  they  had  not  paid 
the  note,  and  were  insolvent,  were  entitled  to  recover  its  amount, 
under  the  absolute  terms  of  the  covenant ;  but  that  the  plaintiffs 
could  not  recover  the  costs  of  a  suit  against  them  on  the  note  : 
as  to  these  costs,  the  bond  was  declared  purely  to  be  an 
agreement  to  indemnify ;  and  the  learned  Judge  Beardsley  pro- 
ceeded to   say,  "Notwithstanding  what  is  said  in  the  case  of 

*  Chace  v.   Hinman,   8   Wend.  452  ;    Ex-        t  Aberdeen  v.  Blackman,  6  Hill,  324. 
parte  Negus,   7  Wend.   499 ;    and   Webb  v. 
Pond,  19  Wend.  423. 

1  So  in  McGee  v.  Roen,  4  Ab.  N.  Y.  P.  R.  8. 


A 


\ 

! 


CH.    XI.]  INDEMNITIES    AGAINST   LIABILITY.  351 

Chace  v.  Hinman  (8  Wend.  452),  I  must  say  that  I  am  not 
aware  of  any  distinction  at  common  law  between  an  indemnity 
against  damage  and  one  against  liability,  which  warrants  a  re- 
covery on  the  latter  on  simply  showing  the  fact  of  liability.  In 
both,  as  I  think,  there  must  be  evidence  of  actual  damage,  by 
the  payment  of  money  or  otherwise."  *  Again,  on  a  bond  "  to 
save  harmless,"  it  was  said,  "  Here  is  no  absolute  agreement  to 
pay,  and  no  agreement  to  keep  the  party  clear  from  liability, 
but  merely  to  indemnify ; "  and  it  was  held,  that  in  order  to  re- 
cover, damage,  and  that  involuntarily  sustained,  must  be  shown. 
It  was  intimated,  however,  that  "  perhaps  after  a  suit .  com- 
menced, and  notice  given  to  the  obligor,  and  neglect  by  him  to 
defend,  the  obligee  would  be  warranted  in  putting  a  stop  to  the 
costs."!  In  a  recent  case  in  New  York,  the  whole  subject  was 
considered  in  the  Court  of  Appeals.  The  covenant  was,  that 
the  plaintiff  should  not  sustain  any  damage  or  molestation  by 
reason  of  any  liability  incurred  by  his  deputy.  Judgment  had 
been  recovered  against  the  plaintiff,  but  not  paid  ;  and  it 
was  held  that  he  was  not  entitled  to  recover,  t  And  the  [313] 
decision  of  Churchill  v.  Hunt,  has  been  approved  of,  and 
its  principle  affirmed,  in  the  State  of  New  Jersey.§  ^ 

These  decisions  replace  this  branch  of  the  law  on  its  proper 
basis,  and  declare  the  salutary  principle,  that  actual  compen- 
sation can  only  be  given  for  positive  loss,  unless  it  is  evident 
that  the  parties  have  stipulated  for  a  more  extensive  remunera- 
tion. Where  the  agreement  is  to  pay  a  specific  sum  of  money, 
or  that  a  third  party  shall  do  it,  then  the  suit  becomes  a  suit  in 
the  nature  of  one  for  specific  performance ;  the  measure  of  dam- 
age is  fixed  by  the  mention  of  the  sum,  and  the  only  doubt  can 
be  whether  the  plaintiff  is  the  proper  party  to  receive  it.  Where 
the  agreement  is  to  indemnify  against  liability,  the  suit  is  also 
in  the  nature  of  one  for  specific  performance.  Liability  is  a 
very  different  thing  from  payment ;  and  I  submit  that  the  literal 
object  of  the  covenant  is  not  attained  unless  the  plaintiff  may 
rest  on  showing  mere  proof  of  liability,  and  is  relieved  from  the 
obligation  of  proving  damage.     The  only  way  to  relieve   the 

*  Churchill  i;.  Hunt,  3  Denio,  321.  §  Jeffers  v.  Johnson,   1   Zabriskie,  73.     In 

t  Crippen  v.   Thompson,  6  Barb.  S.  C.  R.  Ohio,  see   Ohio   Life  Ins.  and  Trust  Co.  v. 

532.  Reeder,  18  Ohio,  47. 
I  Gilbert  v.  Wiman,  1  Comstock,  550. 

1  So  in  an  action  on  a  promissory  note  or  other  instrament  given  as  an  indemnity  by  a 
principal  to  his  surety,  the  measure  of  damages  is  the  amount  paid  by  the  surety  at  any  time 
before  trial,  and  unless  he  has  made  an  actual  payment  he  can  recover  nominal  damages  only. 
Osgood  i;.  Osgood,  39  N.  H.  209  ;  Child  v.  Eureka  Powder  Works,  44  N.  H.  354  ;  Little  v. 
Little,  13  Pick.  426  ;  Gushing  v.  Gore,  15  Mass.  69. 


352  PRINCIPAL   AND    SURETY.  [CH.    XI. 

plaintiff  from  being  liable  to  be  made  to  pay  the  debt,  is  for  the 
law  to  see  to  its  extinguishment.*  ^ 

What  is  Payment.  —  Having  arrrived  at  the  general  rule, 
that  the  surety  cannot  proceed  against  his  principal  debtor 
until  he  has  paid  the  debt,  it  still  remains  to  be  seen  what  in 
judgment  of  law  is  considered  as  payment.  The  suit  of  the 
surety  against  the  principal  is  at  common  law  an  action  of 
assumpsit,  sometimes  special,  but  frequently  on  the  com- 
[314]  mon  counts  for  money  paid  for  the  defendant's  use ;  and 
we  now  proceed  to  determine  what  proofs  will  satisfy  the 
allegation  of  payment! 

It  will  be  perceived  at  once  that  this  inquiry  involves  various 
questions,  some  of  a  technical  character,  and  springing  from  the 
form  of  the  action,  others  relating  to  the  substantial  rights  of 
the  parties.  Is  the  payment  of  money  in  all  cases  necessary  ? 
Can  the  surety,  by  giving  his  bond  or  note  in  payment  of  the 
original  debt,  raise  a  claim  against  the   principal?     Will  the 

*  See  in  Virginia,  a  suit  by  a  sheriff  on  an  t  "  It  is  an  equitable  principle  of  very  gen- 
indemnity  bond  against  damages  on  levying  eral  application,"  says  Mr.  Chancellor  Wal- 
an  execution  upon  certain  specified  property,  worth,  in  Hunt  v.  Amidon,  4  Hill,  349,  "  that 
Dabney  v.  Catlett,  12  Leigh,  383  and  684.  where  one  person  is  in  the  situation  of  a  mere 
See  in  the  same  State,  a  suit  on  an  indemnity  surety  for  another,  whether  he  became  so  by 
against  injury  to  a  mill-dam.  Chapman  v.  actual  contract,  or  by  operation  of  law,  if  he 
Ross,  12  Leigh,  565.  is  compelled  to  pay  the  debt  which  the  other 

In  Vermont,  if  one  promise  to  indemnify  in  equity  and  justice  ought  to  have  paid,  he 

another  for  all  damage,  etc.,  which  he  shall  is  entitled  to  relief  against  the  other,  who  was 

incur  in  giving  up  to  the  promisor  a  certain  in  fact  the  principal  debtor.    And  when  courts 

horse,  and  in  bringing  a  suit  against  the  ven-  of  law,  a  long  time  since,  fell  in  love  with  a 

dor  thereof  for  fraudulently  selling   a  horse  part  of  the  jurisdiction  of  the  court  of  chan- 

belonging  to  another,  if  he  fail  therein,  —  if  eery,  and  substituted  the  equitable  remedy  of 

the  suit  is  brought,  and  the  plaintiff  defeated,  an  action  of  assumpsit  on  the  common  money 

the  record  of  the  judgment  is  competent  evi-  counts  for  the  more   dilatory  and   expensive 

deuce  in  a  suit  against  the  promisor  founded  proceeding  of  a  bill  in  equity,  in  certain  cases, 

on  the  promise,  so  far  as  to  show  the  bring-  they  permitted  the  person    thus  standing  in 

ing  and  failure  of  the  action ;  and  that  though  the  situation  of  surety,  who  had  been  com- 

notice  of  the  bringing  of  the  suit  was  given  pelled  to  pay  money  for  the  principal  debtor, 

to  the  defendant.     But  the  amount  of  dam-  to  recover  it  back  again  fi'om  the  person  who 

ages  depends  on  the  title  to  the  horse ;  and  as  ought  to  have  paid  it,  in  the  equitable  action 

to  this  the  judgment  is  not  evidence.    Lincoln  as  for  money  paid,  laid  out,  and  expended,  for 

V.  Blanehard,  17  Verm.  464.  his  use  and  benefit." 

1  In  the  case  of  Spark  v.  Heslop,  28  L.  J.  R.  (N.  S.)  Q.  B.  197,  the  defendant,  in  a  letter  to 
the  plaintiff  requesting  him  to  pay  to  a  banking  company  for  his  account  a  bill  of  exchange 
for  £400,  drawn  by  one  Henderson  on  and  accepted  by  one  Hutchinson,  and  indorsed  by  the 
defendant,  and  also  requesting  him  to  bring  an  action  against  Hutchinson  for  the  recovery  of 
the  amount  and  interest,  added  the  following  engagement :  "  And  I  hereby  agi"ee  to  be  answer- 
able to  you  for  the  due  payment  of  the  amount  of  the  said  bill  and  interest  which  you  may 
pay  to  the  said  banking  company,  and  for  all  costs,  damages,  and  expenses  which  you  may 
sustain  by  reason  of  such  payment  and  the  trying  of  the  said  action  against  the  said  John 
Hvxtchinson,  and  in  any  manner  relating  thereto,  you  giving  me  credit  for  all  money  you  may 
receive  from  the  said  John  Hutchinson  in  such  action."  The  plaintiff  having  brought  the 
action  against  Hutchinson  unsuccessfully,  the  court  distinguished  this  undertaking  from  the 
case  of  an  indemnity,  and  between  "sustaining"  costs,  damages,  and  expenses,  and  paying 
them.  They  held  that  the  plaintiff  sustained  damage  when  the  liability  was  incurred,  and 
that  he  could  recover  the  costs  he  was  liable  for  to  his  own  attorney  although  he  had  not  paid 
them,  as  well  as  those  of  the  defendant  in  the  other  suit  which  he  had  paid. 


CH.    XI.]  WHAT    18    PAYMENT.  353 

transfer  of  land,  whether  by  mortgage  or  deed,  be  treated  as 
payment?  and  if  so,  at  what  value  shall  it  be  computed? 
These,  and  similar  inquiries,  are  often  complicated  and  perplex- 
ing. 

The  rule  appears  to  be  well  settled  in  this  country,  though  far 
from  being  clear  in  England,  that  the  giving  by  the  surety  of  his 
negotiable  promissory  note,  which  is  received  not  collaterall}^, 
but  as  actual  payment  of  the  original  debt,  will  be  held  to  be 
payment  as  against  the  principal  debtor,  and  that  the  surety  may 
at  once  proceed  against  him  for  the  amount  of  his  note  ;  in 
other  words,  the  note  is  treated  as  money.  While  on  the  other 
hand,  it  is  also  held  that  the  giving  a  bond  will  not  have  the  like 
effect,  and  that,  until  the  payment  of  the  bond,  the  surety  has 
no  claim  against  his  principal. 

It  is  also  well  settled,  that  an  absolute  conveyance  of  the 
land,  by  the  surety,  will  be  sufficient  to  raise  a  claim  on  his  be- 
half against  the  principal  to  its  full  value,  and  that  it  will  be 
treated  as  money  paid  for  the  use  of  the  original  debtor.  An 
examination  of  the  decisions  will  best  elucidate  these  rules. 

In  an  early  case  in  the  King's  Bench,*  an  application  was 
made  to  discharge  the  defendant  from  custody  on  filing 
common  bail ;  and  it  appeared  that  the  defendant  being  [31 5 j 
indebted  to  one  Creswell,  the  plaintiff  Taylor  had  given 
Creswell  a  bond  and  warrant  of  attorney,  and  paid  him  £7  or  £8 
of  costs  ;  that  this  security  was  accepted  as  payment  and  satis- 
faction of  the  debt;  and  it  was  contended  that  this  was  the  same 
as  if  the  debt  had  been  paid  in  money.  But  Lord  Ellenborough 
said,  ''There  is  no  pretense  for  considering  the  giving  this  new 
security  as  so  much  mone?/  paid  for  the  defendant's  use ;  "  and 
the  rule  to  discharge  the  defendant  from  custody  was  made 
absolute.! 

On  the  authority  of  this  case  the  same  point  has  been  decided 
in  New  York.J  The  plaintiffs  being  accommodation  indorsers 
for  the  defendant,  had,  on  being  sued,  executed  to  the  holders  of 
the  accommodation  paper,  on  the  15th  April,  1807,  two  bonds, 
one  paj^able  in  eighteen  months,  and  the  other  in  two  years, 
which  bonds  had  not  been  paid.  The  plaintiffs,  subsequently, 
were  discharged  under  the  insolvent  act.  The  judge  charged 
that  the  two  bonds  amounted  in  law  to  the  payment  of  the  notes, 
but  the  jury  found  a  verdict  for  the  defendants.  On  the  motion 
for  a  new  trial,  the  court  said,  "The  question  is  whether  giving 

*  Taylor  v.  Higgins,  3  East,  169.  tained  in  Maxwell  v.  Jameson,  2  B.  &  Aid. 

t  No  attention  appears  to  have  been  paid  to     51,  noticed  more  fully  hereafter, 
the  payment  of  the  costs.     This  case  was  sus-         J:  Gumming  et  al.  v.  Hackler,  8  Johns.  R. 

202. 
23 


354  PRINCIPAL    AND    SURETY.  [CH.    XI. 

a  bond,  in  discharge  of  the  liabihty  of  the  plaintiffs,  is  to  be 

considered  as  a  payment  in  money An  obligation  to  pay 

is  not  the  same  tiling  as  actual  payment.    A  bond  has  no  analogy 

to  cash The  technical  rule  operates  with  perfect  justice 

in  this  case  ;  for  the  bond  has  not,  and  never  will  be  paid,  as  the 
plaintiffs  have  since  been  discharged  under  the  insolvent  act ; 
and  if  the  money  now  demanded  was  to  be  recovered,  their 
estate  would  receive  it  without  ever  having  given  an  equiva- 
lent."    The  motion  for  a  new  trial  was  denied. 

The  rule  laid  down  in  this  case  appears  to  be  the  same  where 
a  mortgage  is  given.  So  where  an  accommodation  indorser  gave 
a  mortgage  to  secure  his  debt,  and  subsequently  released  the 
equity  of  redemption,  and  made  a  conveyance  of  the  land,  the 
case  of  Gumming  v.  Hackley  was  cited  with  approbation  ;  and  it 
was  held  that  though  the  conveyance  gave  a  right  of  action,  the 
mortgage  furnished  no  basis  of  claim.* 

[316]  Payment  by  Note.  —  A  different  rule  has  been  adopted, 
as  I  have  already  said,  where  the  payment,  if  such  it  can 
be  called,  is  made  by  giving  a  note.  Wheref  the  plaintiff  became 
security  for  the  defendant's  subscription  to  a  brewer's  benefit 
club,  the  club  called  on  the  plaintiff,  and  he  gave  his  note  for 
the  amount  of  the  subscription.  On  the  trial  of  the  cause,  it 
being  an  action  of  assumpsit  for  money  paid,  and  the  objection 
being  taken  that  the  giving  a  note  was  no  payment,  Lord  Ken- 
yon  held,  "  That  the  club  having  consented  to  take  the  note  from 
the  plaintiffs,  it  was  as  payment  to  them  of  the  money  due  by 
the  defendant ;  and  so  the  action  was  maintainable."  It  is  added, 
that  at  the  next  term  a  new  trial  was  moved  for ;  but  the  court 
agreeing  with  his  Lordship,  the  rule  was  refused. 

This  authority  was  much  shaken  by  a  subsequent  case.1:  It 
was  an  action  for  contribution.  The  plaintiffs  and  defendants 
united  in  a  promissory  note  to  Batson  &  Co. ;  Maxwell  took  up 
the  note,  by  giving  his  own  bond  to  Batson  h  Co.  for  the 
amount.  No  money  was  paid.  On  this  state  of  facts.  Maxwell 
sued  Jameson  in  assumpsit  for  money  'paid.  Bayley,  J.,  said, 
"  The  plaintiff  in  this  case  has  paid  no  money.  It  is  said,  in- 
deed, that  he  has  given  what  was  equivalent  to  it,  and  that  it 
ought  to  be  considered,  for  this  purpose,  as  money  ;  and  so  it 

*  Ainslie  v.  Wilson,  7  Cow.  662.  cision.     "  Supposinc/  even,"  he  says,  "  the  case 

t  Barchiy  et  al.   v.    Gooch,  2   Esp.  N.  P.  of  the  note  of  hand  or  l)ill  of  exchange,  as  the 

Cases,  571.     This  case  was  referred  to  hy  the  cnrrent  representative  of  money,  to  have  been 

court,  in  Taykjr  v.  Higjiins  (3  East,  169),  al-  rightly  decided,  still,"  etc. 

ready  cited;  but  Lord  Ellenborough  did  not  X  Maxwell  v.  Jameson,  2  B.  &  Aid.  51. 

commit  himself  to  the  correctness  of  the  de- 


en.    XI.]  PxVYMENT    BY    NOTE.  355 

was  held  in  Barclay  et  al  v.  Gooch.  But  in  Taylor  v.  Higgins 
the  court,  having  the  former  case  before  them,  held  that  the 
action  for  money  could  not  be  maintained."  ....  Then,  as 
the  authorities  differ,  it  becomes  necessary  to  look  to  the  reason 
of  the  thing.  No  money  has  yet  come  out  of  the  plaintiff 's  pocket, 
and  non  constat  that  any  ivill ;  for  if  he  recover  from  the  defend- 
ant in  the  present  action,  still  it  is  possible  he  may  never  pay  it 
over  to  Batson  &  Co.  The  period  of  time  at  which  his  remedy 
against  the  defendant  shall  commence  has  not  yet  arrived.  If 
hereafter  he  is  compelled  to  pay  the  money  due  upon  the  bond, 
he  may  then  have  his  remedy  against  Jameson  for  the  contribu- 
tion." Abbott,  J.,  said,  "  That  even  supposing,  what  might  be 
doubtful,  that  the  plaintiff  had  entirely  relieved  the 
defendant  from  the  demand  which  Batson  &  Co.  had  [317] 
against  him,  still  the  case  of  Taylor  v.  Higgins  is  con- 
clusive." Holroyd,  J.,  said,  "  In  order  to  support  this  action, 
the  debt  must  have  been  extinguished,  either  by  an  actual  or 
virtual  payment  of  money  by  the  plaintiff  to  the  defendant's 
use.  There  has  clearly  been  no  actual  payment  ;  and  in  order 
to  have  made  the  giving  of  the  bond  operate  as  a  virtual  pay- 
ment, the  defendant  must  be  shown  to  have  been  a  party  to  the 
transaction,  which  was  not  the  case." 

These  cases  leave  the  rule  in  England  in  a  very  unsettled 
state.  In  this  country,  however,  the  original  decision  of  Bar- 
clay V.  Gooch  has  been  followed,  both  in  New  York  and  Massa- 
chusetts. In  a  case  already  cited,*  the  case  of  Barclay  v.  Gooch 
was  referred  to  by  the  Supreme  Court  of  New  York,  with  a  qual- 
ified approbation.  "  There  are  some  cases,"  they  say,  "  in 
which  the  giving  negotiable  paper  has  been  held  equivalent  to 
the  payment  of  money ;  and  there  may  be  some  reason  for  this 
distinction  {i.  e.  between  bonds  and  notes),  for  otherwise  a  party 
may  be  obliged  to  pay  a  debt  twice,  if  the  paper  should  pass 
into  the  hands  of  an  innocent  indorsee." 

The  precise  point  came  up  subsequently  for  adjudication  in 
an  action  of  assumpsit  for  money  paid.f  The  plaintiff  became 
surety  for  the  defendants  in  a  promissory  note  to  one  Vanderlyn, 
on  which  judgment  was  recovered.  The  plaintiff  thereupon  gave 
his  negotiable  note  for  the  amount  of  the  judgment.  This  had 
been  accepted  by  Vanderlyn  in  full  satisfaction,  but  it  remained 
unpaid.  The  judge  having  charged  in  favor  of  the  plaintiff's 
right  to  recover,  and  a  verdict  being  obtained,  a  motion  was 
made  for  a  new  trial.  But  the  court,  after  approving  the  decis- 
ion in  Cumming  v.  Hackley,  as  to  a  bond,  said, — 

*  Gumming  v.  Hackley,  8  J.  E.  202,  f  Witherby  v.  Maun  et  al.  11  J.  R.  518. 


356  PRINCIPAL   AND    SURETY.  [CH.    XI. 

"  There  are  cases  in  which  negotiable  paper  has  been  held  equivalent  to  the 
payment  of  money,  to  which  it  is  in  some  measure  analogous,  as  when  the  note 
has  been  negotiated,  and  is  in  the  hands  of  an  innocent  indorsee.  He  of  course 
would  be  protected ;  and  unless  it  was  considered  as  a  payment  of  the  original 
debt,  the  drawer  might  be  made  to  pay  twice.  So  when  the  note  has  been 
accepted  and  paid  in  satisfaction  of  the  debt.  The  note  in  this  case  has  not 
been  negotiated ;  but  has  been  accepted  and  received  by  the  party  in  whose 
favor  the  judgment  was  obtained,  in  satisfaction  of  the  debt,  which  is 
rSlSI  sufficient  to  authorize  this  recovery The  defendant  has  re- 
ceived the  full  benefit,  the  debt  has  been  satisfied  ;  and  as  to  him,  it  is 
the  same  as  if  so  much  money  had  been  paid  for  him."  * 

In  a  recent  case,t  which  came  up  on  error  from  the  New 
York  Common  Pleas,  Heclden,  the  plaintiff  below,  by  way  of 
accommodation  for  Rodman,  indorsed  a  note  on  the  30th  of 
August,  1819,  for  $118,  payable  in  60  days.  In  July,  1820, 
a  judgment  was  obtained  against  Hedden,  as  indorser,  by  one 
Jacot ;  in  October,  1820,  Hedden  paid  $20  on  account  of  this 
judgment;  on  the  26tli  of  May,  1821,  $100  more,  and  gave  his 
note  for  $28.10,  which  was  accepted  by  Jacot  in  full  payment 
and  satisfaction  of  the  judgment.  The  note  for  $28.10  was  paid 
by  Hedden  on  the  28tli  of  July,  1821,  previous  to  which  (on  the 
25th  of  July,  1821),  Rodman  had  left  the  State  of  New  York, 
and  did  not  return  till  1830,  when  the  suit  was  brought.  The 
note  for  $28.10  was  thus  given  and  accepted  in  satisfaction  hefore 
the  defendant  Rodman  left  the  State,  but  not  paid  till  after  his 
departure.  The  defendant  set  up  the  statute  of  limitations, 
insisting  that  the  plaintiff's  cause  of  action  accrued  when  the 
original  notes  made  by  Rodman  with  Hedden's  indorsement  came 
to  maturity,  and  that,  as  the  defendant  was  then  in  the  State, 
the  statute  had  attached,  and  the  claim  was  consequently  barred. 
This  defense  was  unsuccessful  in  the  Common  Pleas,  and  the 
plaintiff  had  a  verdict  and  judgment ;  to  reverse  which,  error 
was  brought.     After  argument,  it  was  said,  — 

"  If  the  giving  the  note  for  $28.10,  under  the  circumstances  of  this  case,  can 
be  considered  as  so  much  money  paid  by  Hedden  for  Rodman,  then  the  whole 
cause  of  action  was  complete  on  the  2Gth  of  May,  1821,  when  the  note  was 
given,  which  was  two  montlis  before  Rodman  left  the  State.  The  statute  having, 
in  that  event,  commenced  running  before  Rodman's  departure,  as  to  the  whole 
cause  of  action,  and  more  than  six  years  having  elapsed  before  the  commence- 
ment of  this  suit,  the  whole  cause  of  action  is  barred  by  the  statute."  And  after 
citing  the  cases  we  have  already  considered :  "  We  understand  from  the  testi- 
mony, that  the  note  was  not  only  given  by  Hedden,  but  was  also  actually  re- 
ceived in  full  satisfaction  and  discharge  of  the  judgment.     It  was,  therefore, 

*  See  also  Beardsley  v.  Root,  11  J.  R.  464.        t  Rodman  v.  Hedden,  10  Wend.  498. 


CH.   XI.]  PAYMENT    BY    NOTE.  357 

upon  the  authority  of  the  preceding  cases,  equivalent  to  money  paid  for  the  use 
of  Rodman  from  the  moment  of  its  delivery ;  and  this  having  been  two  months 
before  Rodman  left  the  State,  the  whole  of  the  plaintiff's  cause  of  ac- 
tion was  then  complete;  and  the  judge  should  have  charged  the  jury    [319] 
that,  upon  the  issue  of  the  statute  of  limitations,  the  defendant  was  en- 
titled to  their  verdict." 

And  the  jiidgment  was  reversed.*  So  where  agreements  had 
been  given  b}^  the  defendants  as  prmcipals,  to  pay  or  save  harm- 
less, and  the  plaintiffs  as  sureties,  after  verdict,  had  given  their 
negotiable  note  for  the  debts  and  costs,  it  was  held  that  the  ver- 
dict was  evidence  against  the  principals,  though  without  notice, 
and  that  the  negotiable  note  given  and  accepted  in  full  satisfac- 
tion and  discharge,  Avas  equivalent  to  the  payment  of  cash  ;  the 
court  adding,  "  So  it  would  now  probably  be  holden  of  a  note 
not  negotiable."  f 

The  rule  appears  to  be  the  same  in  Massachusetts.  Where 
a  promissory  note  was  made  at  the  request  of  the  defendant  by 
a  third  party,  payable  to  the  plaintiff,  and  indorsed  by  him,  and 
discounted  at  a  bank  for  the  use  and  benefit  of  the  defendant, 
the  plaintiff  paid  the  note  to  the  bank  by  giving  a  new  note 
made  by  himself  and  indorsed  by  another  party.  The  English 
and  New  York  cases  were  reviewed,  and  it  was  held  that  the 
giving  the  new  note  was  equivalent  to  a  payment  of  the  first, 
and  would  support  an  action  for  money  paid.$ 

So  again  it  has  been  held  there,§  that  a  surety  who  gives  his 
own  note  for  the  debt  of  the  principal,  which  is  accepted  as 
full  payment  by  the  creditor,  and  the  principal  discharged,  may 
treat  the  note  as  money  paid,  and  maintain  an  action  of 
assumpsit  thex^eon. 

To  Constitute  Payment  a  Note  must  be  Accepted  as  Such.  —  It 
is  to  be  borne  in  mind,  however,  in  all  these  cases,  that  it  is 
essential  that  the  note  should  be  given  and  accepted  by  the 
creditor,  as  full  payment  and  in  complete  satisfaction. 
This  has  been  repeatedly  decided.  So  where  an  action  [320] 
of  covenant  was  brought  ||  by  plaintiffs,  who  had  sold  the 
defendants  certain  coal  mines,  for  which  they  covenanted  to  pay 

*  This  is  a  hard  case,  and  evinces  a  deter-  garding  this  line  of  defense,  decided  that  the 

mination  to  carry  the  rule  to  its  greatest  ex-  cause  of  action  accrued  on  the  acceptance  of 

tent.     And  it  is  "to  be  noticed  tliat  the  judg-  the  note    by  Jacot,  i.  e.   26th  of  May,  1821, 

ment  was  reversed  on  a  ground  that  by  the  which    point  does   not   appear   to  have  been 

report  does  not  appear  to  have  been   taken  at  raised  below, 

all  at  the  trial.     The  defendant  there  insisted  t  Lee  v.  Clark,  1  Hill,  56. 

that   the  plaintiff's  cause  of  action  accrued  |  Cornwall  v.  Could,  4  Pick.  444. 

when  the  original  notes  set  forth  in  the  dec-  §  Doolittle  v.  Dwight,  2  Met.  561. 

laration  came  to  maturity;    i.e.   Nov.  1819,  1|  Drake  y.  Mitchell  ef.  a/.  3  East,  251. 
and  April,  1820.     The  court,  however,  disre- 


358  PRINCIPAL    AND    SURETY.  [ciI.    XI. 

a  sum  certain  in  installments,  the  defendants  pleaded  payment 
of  part,  and  a  bill  of  exchange  given  for  payment  and  in  satis- 
faction of  the  residue  on  which  judgment  had  been  recovered. 
To  this  j^lea  the  plaintiff  demurred ;  and  it  was  held  bad,  be- 
cause it  was  not  averred  that  the  bill  was  accepted  in  satisfaction, 
nor  that  it  had  produced  it ;  that,  not  having  been  accepted  as  sat- 
isftiction  for  the  debt,  the  bill  could  only  operate  as  a  collateral 
security,  and  that  therefore  the  plaintiff  might  resort  to  his 
original  remedy  on  the  covenant ;  and,  said  Le  Blanc,  J.,  "  The 
giving  of  another  security,  which  in  itself  would  not  operate  as 
an  extinguishment  of  the  original  one,  cannot  operate  as  such 
by  being  pursued  to  judgment,  unless  it  produce  the  fruit  of 
a  judgment."  The  principle  of  this  case  has  been  repeatedly 
recognized  in  New  York,*  where  it  is  held,  "  that  a  note  is  not 
payment  of  a  precedent  debt,  unless  there  is  an  express  agree- 
ment to  receive  it  as  payment."  f 

In  a  recent  case  in  New  York:}:  the  doctrine  that  negotiable 
notes  are  to  be  considered  as  money,  has  been  restricted  to 
cases  where  the  notes  have  been  parted  with  to  hond  fide  hold- 
ers for  value.  The  plaintiff.  Reed,  bought  of  the  defendants  a 
thrashing-machine,  and  gave  three  negotiable  notes  of  $200  each 

for  the  purchase  money.  The  machine  proving  worth- 
[321]  less,  the  plaintiff  brought  an  action  iov  money  paid  against 

the  defendants.  A  verdict  was  obtained,  but  it  was  set 
aside  and  a  new  trial  granted.  The  court,  by  Savage,  C.  J.,  say- 
ing, — 

"  Had  the  notes  in  question  been  given  to  a  third  person  in  payment  and  dis- 
charge of  a  debt  due  by  the  defendants  to  such  third  person,  then  the  case  would 
have  come  within  previous  decisions.  But  I  cannot  find  that  the  giving  a  note 
has  ever  been  considered,  as  between  maker  and  payee,  the  payment  of  money 
by  the  former  to  the  latter.  In  my  judgment,  the  mere  giving  a  note  cannot  be 
considered  payment  of  the  very  money  for  which  such  note  is  given  as  security, 
so  as  to  justify  a  recovery  of  it  by  the  maker  against  the  jDayee." 

In  a  more  recent  action,  in  the  same  State,  where  the  facts 

*  Witherby  v.  Mann  et.  al.  11  J.  R.  518  ;  6  Mass.  143;   Huse  v.  Alexander,  2  Met.  157. 

Tobey  v.  Barber,  5  J.  R.  68,  and  Johnson  v.  So  also,  in  that  State  it  is  held,  in  an  action 

Weed  et.  al.  9  J.  R.  310.  by  the  indorsee  against  the  maker  of  a  nego- 

t  In  Massachusetts  it  would  seem  that,  in  liable   note,  indorsed  when  overdue,  a   nego- 

some  cases,  this  express  agreement  is  inferred  tiable   note   made   to    the    defendant  by    the 

from  the   mere    fact  of  giving  a   negotiable  payee,  intended   as   a   payment  of  the    note, 

note.  may  be  shown  in  defense  as  a  set-off.     Hol- 

The  giving  a  negotiable  note  for  a  debt  in  land  v.  Makepeace,  8  Mass.  418  ;  Sargent  v. 

a  single  contract,  raises  a  legal  presumption  Southgate,  5  Pick.  312.    "  A  negotiable  prom- 

that  the  note  was  received  in  payment,  and  issory  note,  by  the  common  law  of  this  State, 

will  operate  as  a  discharge  of  the  single  con-  is  holden  to  be  a  discharge  of  a  single  contract 

tract,  unless  the  presumption  be  controlled  by  on  which  it  was  founded""     Emerson  v.  Prov. 

evidence   of  a   contrary   intent.      Thacher  v.  H.  M.  Co.  12  Mass.  237. 

Dinsmore,  5  Mass.  209  ;  Maneely  v.  M'Gee,  %  Reed  r.  Van  Ostrand,  I  Wend.  424. 


CH,    XI.]  PAYMENT    BY    NOTE.  359 

hypothetically  put  by  the  court  in  the  case  last  cited,  were 
actually  presented,  the  notes  having  been  transferred  to  a  bond 
fide  holder  for  value,  iha  plaintiff  was  held  entitled  to  recover 
as  for  money  paid  and  received.''*' 

I  am  constrained  to  say,  upon  a  review  of  these  authorities, 
that  the  English  rule,  as  settled  by  the  case  of  Maxwell  v. 
Jameson,  appears  to  me  to  be  the  sounder  one,  and  more  in 
accordance  with  the  cardinal  principle  upon  which  1  have 
already  often  insisted,  that  actual  compensation  shall  only  be 
recovered  for  actual  loss.  There  is  no  foundation  whatever  for 
any  distinction  between  a  note  and  a  bond  ;  the  question  turns, 
or  should  turn,  on  the  fact  of  the  amount  of  money  actually 
paid  by  the  surety  to  relieve  his  principal.  It  is  no  answer  to 
say  that  the  note  is  treated  as  money  by  the  original  creditor. 
Relief  to  the  principal  obtained  by  the  mere  solicitations  of  the 
surety  would  certainly  be  considered  no  ground  of  action ;  how 
does  his  promise  strengthen  the  claim  ?  The  question  is  not 
whether  the  principal  is  extricated  from  his  embarrassment,  but 
whether  the  plaintiff  (the  surety)  has  suffered  any  loss.  It 
could  certainly  never  be  tolerated  that  a  notorious  and  desper- 
ate insolvent,  as  in  the  case  of  Gumming  v.  Hackley,  should  by 
any  arrangement  with  the  creditor  put  money  in  this  way  in 
his  own  pocket ;  and  an  inquiry  into  the  probable  payment  of 
the  note  seems  essential,  even  on  the  ground  that  it  is  in  any 
case  to  be  treated  as  payment.  This,  however,  raises  a  new 
issue  completely  foreign  to  the  original  controversy.  It  seems 
to  me  on  the  whole,  the  only  safe  rule  to  declare  in  all 
cases,  that  a  plaintiff  shall  not  ask  a  court  of  justice  for  [322] 
redress  until  he  has  suffered  some  actual  positive  injury  ; 
that  the  mere  apprehension  of  loss  shall  in  no  case  be  sufficient 
to  entitle  him  to  actual  compensation.! 

*  Colville  u.  Besley,  2  Denio,  139.  de  novatio,  convention  nonvellc.     On  appelle 

t  It  is  proper,  however,  to  notice  that  the  de  ce  nom,  en  termes  de  droit,  le  changement 

American  rule,    as    applicable   to   negotiable  d'un  contrat  en  un  autre,  et  par  lequel  il  est 

paper  —  i.  e.  that  when  given  by  a  surety  or  deroge   au  premier.      Dictionnaire  du  Droit 

secondary  debtor,  and  accepted  by  the  cred-  Civil,   in   voc.     All  the  cases  which  we  have 

itor  in  full  satisfaction  of  his  demand,  it  gives  just  examined    in  the  text,  where   bonds    or 

at  once  a  right  of  action  against  the  principal  notes  were  given  to  extinguish  prior  obliga- 

debtor  —  is  also  the  rule  of  the  civil  law.  tions,  would,  according  to  the  civil  or  French 

La  caution,  says  Pothier,  in  his  Traits  des  law,   be  novations.      En    tous   ces   cas,   con- 
Ohligations,  part  ii.  ch.  6,  section  7,  art.  1,  §  1  "  tinues  Pothier,  la  caution  a  droit  de  deman- 

&  2,' ed.  of  1781,  vol.  1,212,  a  recours  contre  der  que   le  debiteur  pi-incipal   la  rcmbourse, 

le  de'biteur  principal  apres  qu'elle  a  paye.  —  soit  de  la  somme  qu'elle  a  payc'e,  soit  de  celle 

II  y  a  meme  des  cas  auxquels  la  caution  a  ac-  qu'elle  a  compensee,  soit  de  celle  qu'elle  s'est 

tion  contre  le  de'biteur  principal,  meme  avant  obligee  de  payer  pour  eteindre   I'obligation  du 

qu'elle    ait    pay€ ;    and    again,    II    n'importe  principal  de'biteur. 

que  le  paiement  ait  ete  un  paiement  reel,  ou  The  French  Code  also  recognizes  the  right 

une    compensation,    ou   une   novation.      This  of  the  security  to  proceed  against  the  debtor 

term,  novation,  is  thus  defined  by  Crivelli  —  before    payment,    and   carefully    defines   the 


360  PRINCIPAL    AND    SURETY.  [CH.    XI. 

Payment  in  Land  or  Goods.  —  It  remains  to   be  seen 
[323]  how    far  the   conveyance  or  transfer  of  land  [or  other 
property  in  discharge  of  a  pecuniary  liabiHty]  furnishes 
the  surety  an  action  against  his  principal. 

In  an  action  of  assumpsit  for  money  paid,*  the  defendant  on 
the  12th  of  April,  1817,  obtained  from  the  plaintiffs  their  in- 
dorsement on  two  notes,  each  for  $2,059.35.  The  notes  were 
indorsed  to  John  B.  Murray  &  Son,  then  again  indorsed  over, 
and  paid  by  the  subsequent  indorser.  The  plaintiffs  executed 
to  the  Murrays  a  mortgage  on  four  lots  (subject  to  a  previous 
mortgage  for  $1,770),  as  a  security  for  the  indorsements,  and 
subsequently  released  the  equity  of  redemption  to  the  Murrays, 
who  received  the  release  as  payment  of  $1,200  on  the  plaintiffs' 
indorsement,  and  discharged  them  from  all  further  liability  as 
indorsers.  Evidence  was  taken  as  to  the  value  of  the  lots,  and 
the  jury  found  for  the  plaintiffs  $804.45.  On  a  motion  for  a 
new  trial,  it  was  contended  that  the  conveyance  of  land  would 
not  sustain  an  action  for  money  paid ;  but  the  court,  after  de- 
ciding that  under  Gumming  v.  Hackley,t  and  Taylor  v.  Higgins,$ 
the  mortgage  was  no  payment,  used  this  language,  as  to  the  re- 
lease of  the  equity  of  redemption :  "  We  have  no  doubt  as  the 
conveyance  of  the  land  was  received  in  discharge  of  a  money 
debt  due  from  the  plaintiff,  it  is  in  judgment  of  law  to  be  con- 
sidered the  same  thing  as  if  the  plaintiff  had  actually  paid 
money.  The  Murrays  received  it  as  money,  or  an  equivalent 
for  money.     They  had  the  right  of  electing.     To  the  defendant 

cases  in  which  it  is  to  be  exercised.     The  pro-  French  Code  is  not  confined  to  the  mere  money 

visions  are  as  follows  :  —  paid.     2028.  La  cautiona  a  ussi  recours  pour 

Art.  2028.  La  caution   qui   a  paye   a  son  les  dommages  et  interets,  s'il  a  lieu, 

recours  contre  le  debiteur  principal,  soit  que  L'engaj^ement  des  de'biteurs   en  vers    leurs 

le   cautionnement  ait  ete    donne  au  su  ou  a  cautions    n'est   pas   compris,    says    Toullier, 

I'insu  de'biteur.     Art.  2032.  La  caution  meme  sous   la   regie    (115.3);   car  ce   n'est  pas   de 

avant  d'avoir  pay^  pent  agir  contre  le  debi-  I'argent  que  les  debiteurs  doivent  k  leur  cau- 

teur  pour  etre  par  lui  indemnisee.  tions  ;    ils  doivent  les    indemniser    des   dora- 

1.  Lorsqu'elle  est  ijoursuivie  en  justice  pour  mages  qu'elles  pourront  suffrir  de  la  part  du 
le  paiement.  creancier  qui  n'est  pas  paye,  comme  s'il  fait 

2.  Lorsque  le  de'biteur  a  fait  faillite,  ou  est  saisir  leurs  biens.  Ainsi,  I'indemnite'  que  le 
en  deconfiture.  debiteur  doit  a  sa  caution  I'oblige,  sans  qu'il 

3.  Lorsque  le  debiteur  s'est  oblige  de  lui  soit  besoin  de  stipulation  aux  dommages  et 
rapporter  sa  de'charge  dans  un  certain  temps.  inte'rets  qui  resulteraient  de  la  saisie  et  vente 

4.  Lorsque  la  dette  est  devenue  exigible  par  des  biens  de  la  caution.  Toullier,  vol.  6,  280, 
Techeance  du  terme  sous  lequel  elle  avoit  e'te  des  Contrats. 

contracte'e.  This  would  not  be  so  with  us,  as  I  have 

5.  Au  bout  de  dix  annees,  lorsque  I'obliga-*  already  had  occasion  to  say,  unless  the  surety 
tion  principale  n'a  point  de  tenne  fixe  d'eche-  held  a  contract  to  indemnif}'  and  save  him 
ance,  a  moins  que  I'obligation  principale,  telle  harmless.  In  the  case  of  a  suretyship  arising 
qu'une  tutele,  ne  soit  de  nature  a  jiouvoir  etre  by  implication,  or  without  a  contract  to  in- 
etiente  avant  un  temps  determine.  demnify,  the  recovery  is  limited  strictly  to  the 

It  is  to  be  borne  in  mind,  however,  that  the  money  paid  for  the  u.se  of  the  principal, 

courts  of  France  follow  the  course  of  the  civil  *  Ainslie  v.  Wilson,  7  Cow.  662. 

law,  and  that  there  is  no  division  of  jurisdic-  t  8  J.  R.  202. 

tions.  J  3  East,  169. 

The  remuneration  of   cautions    under    the 


CH.    XI.]  PAYMENT    IN    LAND.  361 

it  was  immaterial  whether  the  payment  was  made  in  one  way  or 
the  other."  And  a  new  trial  was  denied.  This  case,  however, 
leaves  the  question  open  as  to  the  rate  at  which  land  under 
such  circumstances  is  to  be  taken.  The  court  say,  "  There  is 
some  question  whether  the  equity  of  redemption,  taken  subject 
to  the  previous  mortgage,  was  equal  in  value  to  the  $1,200. 
The  jury  found  $804.45  only ;  and,  from  the  evidence,  we 
think  they  M'ere  warranted  in  finding  that  amount."  This  would 
seem  to  imply  that  the  actual  and  not  agreed  value  of  the  land 
is  to  be  the  guide.  Nor  does  the  question  appear  to  have  been 
raised  how  far  the  maker  and  principal  debtor,  Wilson,  the  de- 
fendant, was  benefited  by  this  transaction.  The  court 
say,  that  on  the  conveyance  of  the  land  at  the  agreed  [324] 
valuation  of  $1,200,  and  the  release  of  the  plaintiff,  Ain- 
slie,  "  the  remainder  due  on  the  notes  constituted  a  valid  claim 
in  favor  of  the  Murrays,  against  Wilson,  the  maker."  But  is  it 
clear  that  the  claim  of  the  Murrays  as  against  Wilson  was  good 
for  only  the  remainder  ?  If  the  Murrays  had  sued  Wilson  on 
the  note,  what,  as  between  them,  would  have  been  the  measure 
of  damages  ?  Could,  in  such  an  action,  Wilson  have  had  the 
benefit  of  the  valuation  of  the  land  at  $1,200  to  which  he  was 
not  privy  ?  As  between  the  Murrays  and  Wilson,  was  the  land 
satisfaction  for  anything  more  than  it  was  actually  worth  ? 
What  if  it  had  been  foreclosed  under  the  first  mortgage,  and  no 
surplus  realized,  w^ould  Wilson  have  still  had  the  benefit  of  the 
$1,200  agreement? 

In  a  subsequent  case,*  where  the  plaintiff,  an  accommodation 
maker,  had  paid  the  defendant's  debt,  after  judgment  recovered 
for  $401.61,  by  a  conveyance  of  land  for  a  consideration  expressed 
in  the  deed  of  $548.31,  it  was  held,  after  affirming  the  main  point 
decided  in  the  last  case,  that  the  defendant  was  at  liberty  to 
reduce  the  amount  of  the  recovery  by  showing  that  the  land 
conveyed  in  satisfaction  of  the  judgment  was  not  of  value  equal 
to  the  amount  of  the  note  and  interest ;  and  this  evidence  hav- 
ing been  excluded  at  the  circuit,  a  new  trial  was  ordered. 

The  same  doctrine  has  been  declared  in  Massachusetts.  So 
under  a  plea  of  payment  in  an  action  of  debt  on  judgment,  the 
defendant  is  not  confined  to  evidence  of  payment  in  money,  but 
he  may  show  that  a  chattel  or  deed  of  land  was  given  and  re- 
ceived in  satisfaction  of  the  judgment.  He  must,  however,  prove 
that  the  thing  received  was  of  the  full  value  of  the  debt,  or  that 
it  M^as  agreed  to  be  received  as  such.f 

*  BoTinc)'  V.  Secley.  2  Wend.  481.  rule  was  laid  down  in  President  of  Ncwbury- 

t  Howe  V.  Mackay,  5  Pick.  44;  and  the  same    port  Bank  v.  Stone,  13  Pick.  420. 


362  PRINCIPAL    AND    SURETY.  [CH.    XI. 

But  taking  possession  of  a  mortgaged  estate  for  the  purpose 
of  foreclosure,  does  not  operate  as  a  payment  of  the  mortgage 
money  ;  for  the  land  still  remains  only  a  security  for  the 
[325]  money* 

Having  thus  examined  the  rules  requiring  the  surety 
to  pay  before  he  proceeds  against  his  principal,  and  also  dis- 
cussed the  questions  that  present  themselves  as  to  the  mode  of 
payment,  we  have  now  to  examine  those  cases  where  the  surety 
is  obliged  to  pay  under  compulsion  of  law,  or  where  by  reason 
of  his  engagement,  he  is  put  to  indirect  or  consequential  loss. 

Consequential  Damage  to  Surety.  —  Where  the  surety  is  com- 
pelled by  suit  to  pay  the  debt  for  which  his  principal  is  pre- 
viously liable,  or  where  a  party  holding  an  indemnity  against  a 
claim  is  obliged  by  legal  proceedings  to  pay  the  demand  in  the 
first  instance,  it  has  been  frequently  decided  that  he  can  recover 
against  the  principal  or  indemnitor,  not  only  the  amount  which 
he  has  been  obliged  to  pay,  but  also  his  costs  incurred  in  defend- 
ing the  action. 

A  party  who  makes  or  accepts,  indorses  an  accomnlodation 
note  or  bill  for  the  accommodation  of  a  party  thereto,  is  regarded 
as  a  surety,  and  can  charge  such  party  with  the  costs  of  a  suit  for 
the  collection  of  the  note  which  he  may  have  been  compelled 
to  pay.f  So  it  has  been  held,  as  between  the  accommodation 
acceptor  of  a  bill  and  the  drawer ;  t  the  accommodation  indorser 
of  a  promissory  note,  'and  the  maker  ;  §  as  between  the  indorser 
of  a  note  compelled  to  pay,  and  a  party  who  had  agreed  to  in- 
demnify him  on  his  indorsements.!! 

Liability  for  Costs.  —  We  have  already  had  occasion  to  con- 

*  West  V.   Chamberlin,    8   Pick.   336.     In        t  Baker  i;.  Martin,  Adm'r,  &c.,  3  Barb.  S. 

Pennsylvania,    the   decisions    on    the    subject  C.  R.  634. 

which  we  have  been  considering  in  this  chap-         |  Jones  v.  Brooke,  4  Taunt.  464. 
ter,  appear  conflicting.     In  Pigou  v.  French,         §  Hubbly  v.  Brown,  16  J.  R.  70.     But  an 

1  Wash.  C.  C.  R.  278,  Mr.  Justice  Washing-  indorser  of  a  regular  bill  of  exchange  who 

ton    held    that   a   surety  cannot   recover   the  has  been  sued  by  the  indorsee,  is  not  entitled 

amount    for    which    he    has    become    liable,  to   recover   from   the   acceptor   the   costs   in- 

without  showing  actual  payment  before  action  curred  in  such  action.     There  is  no   privity 

brought.      But  where   the   defendant  having  between  them.     Dawson  v.  Morgan,  9  Barn, 

guaranteed  to  keep  the  plaintiff  clear  of  back  &  Cres.  618  ;  King  v.  Phillips,  Peter's  C.  C. 

interest,  failed  to  do  so,  it  was  held  that  the  350.     Nor  is  the  maker  liable  to  pay  the  in- 

plaintiff  was  damnified  from  the  moment  judg-  dorser  his  costs  if  he  is  sued.     "The  mere 

ment  was  obtained   against  him,  and  might  fact  of  drawing  the  note  does   not   imply  a 

sue  on  the  agreement.     Gardner  v.  Grove,  10  promise  to  save  the  payee  hai-mless  from  all 

S.  &  R.  137.     In  another  case,  however,  the  costs  and  charges   that  he  may  be  subjected 

court  told   the  jury  they  were   at   liberty  to  to  as  indorser."     Simpson  v.  Grilfiu,  9  J.  R. 

find  for  the  whole  amount  of  the  plaintifTs  131. 

liability,  but  recommended  them   to  find  only         ||  Mott  v.  Hicks,  1  Cowen,  513. 
for  the  amount  actually  paid.    Bauer  v.  Roth, 
4  Rawle,  83. 


CH.    XI.]  RECOVERY    OF   COSTS.  363 

sider  this  question  in  regard  to  warranties;*^  and  it  would 
seem  that  the  hability  for  costs  should  depend  on  the 
grounds  of  the  original  litigation,  and  the  notice  given  [326] 
to  the  party  sought  to  be  charged  with  the  costs.  It 
would  certainly  be  inequitable  that  a  party  should  be  obliged  to 
defray  the  expense  of  a  controversy,  either  unnecessary  in  itself, 
or  which  he  might  not  have  chosen  to  incur.  "No  person,"  says 
Lord  Chief  Justice  Denman,t  "has  a  right  to  inflame  his  own 
account  against  another,  by  incurring  additional  expense  in  the 
unrighteous  resistance  to  an  action  which  he  cannot  defend." 
In  this  case,  the  defendant,  as  lessee  of  a  certain  house,  had 
covenanted  with  his  lessor,  to  put  and  keep  the  premises  in 
repair  under  penalty  of  forfeiture,  and  in  his  assignment  to  the 
plaintiff  had  covenanted  that  all  the  covenants  had  been  per- 
formed. The  covenants  had  not  been  performed ;  the  lease  had 
become  voidable  ;  and  the  plaintiff  having  sub-assigned  the  lease 
to  one  Clark,  with  a  covenant  similar  to  that  which  he  had 
received  from  the  defendant,  was  sued  by  him  (Clark),  and 
obliged  to  pay  £120  to  settle  the  demand,  together  with  £119 
costs  incurred  in  the  defense;  and  it  was  held,  for  the  above 
reason,  that  these  costs  could  not  be  recovered  over  against  the 
defendant.  The  principle  of  this  decision  has  been  repeatedly 
affirmed  in  cases  where  it  has  been  held  that  it  is  not  necessary 
for  the  surety  to  stand  suit  in  order  to  charge  his  principal.  So 
in  New  York,  where  the  defendant  gave  the  plaintiff  a  promise 
to  indemnify  him  against  an  act  which  proved  to  be  trespass, 
and  the  plaintiff  being  sued  for  the  trespass  gave  a  cognovit,  it 
was  held  that  it  satisfactorily  appearing  that  the  cognovit  was 
not  for  too  much,  he  was  entitled  to  recover  the  amount  of  the 
judgment.t^ 

So  in  Pennsylvania,  it  has  been  held  that  a  surety  is  not  bound 
to  subject  himself  to  costs  by  waiting  till  the  creditor  brings  suit ; 
but  he  may  consult  his  own  safety,  provided  it  does  not  involve 
a  wanton  sacrifice  of  the  interests  of  his  principal.§  So  again,  in 
the  same  State,  it  is  held  that  a  surety  cannot  claim  reimburse- 
ment for  expenses  unnecessarily  incurred.||  This  is  in  analogy 
also  with  the  sound  rule  which  we  have  heretofore  noticed  in 
regard  to  real  estate  —  that  the  vendor  who  holds  a  warranty 
may  surrender  to   a  paramount  title,  thereby  only  assuming 

*  Ante,  292.  §  Craig  v.  Craig,  5  Rawle,  91. 

t  Short  V.  Kalloway,  11  Ad.  &  Ell.  28.  ||  Wynn  v.  Brooke,  .5  Rawle,  106. 

t  Stone  V.  Hooker,  9  Cow.  154. 

.  ^  Ante,  78,  note  1. 

2  If  the  surety  in  any  way  extinguishes  or  pays  the  debt  of  the  principal,  he  may  recover  of 
the  latter  both  debt  and  costs,  as  money  paid.    Hulett  v.  Soullard,  26  Vt.  295. 


364  PRINCIPAL   AND    SURETY.  [CH.    XL 

[327]  the  burden  of  proof  that  he  did  not  surrender  without 
just  cause*  And  a  very  similar  decision  has  recently 
been  had  in  England  :  f  it  was  an  action  on  the  case,  for  running 
down  a  ship,  in  consequence  of  which  the  plaintiffs  were  obliged 
to  accept  the  aid  of  salvors,  and  were  compelled  to  pay  a  large 
sum  of  money,  and  certain  costs  in  addition  thereto.  It  ap- 
peared that  the  plaintiffs,  after  a  negotiation  with  the  salvors, 
who  demanded  <£150,  had  tendered  ^£20,  and  by  a  decision  of 
the  admiralty,  were  finally  obliged  to  pay  £45  damages,  and 
£124  costs.  The  plaintiffs  had  a  verdict  for  £45,  with  liberty 
to  move  to  increase  it  by  the  amount  of  costs.  It  was  held  that 
it  should  have  been  left  with  the  jury  to  say  what  a  reasonable 
man  would  do  under  similar  circumstances ;  and  if  the  litigation 
were  found  to  be  prudently  incurred,  then  the  costs  should  be 
allowed  ;  and  Parke,  B.,  said,  "  The  parties  were  in  the  same  sit- 
uation as  if  the  defendants  had  entered  into  a  contract  with  the 
plaintiffs,  not  to  do  the  wrong  complained  of  That  is  not  a 
contract  of  indemnity." 

Notice.  —  But  if  the  suit  be  brought  against  the  surety,  and 
there  appear  good  reason  to  resist  the  claim,  then  the  fur- 
ther question  arises  as  to  notice.  Its  effect  has  been  thus 
stated,  "  The  purpose  of  giving  notice  is,  not  in  order  to  give 
a  ground  of  action ;  but  if  a  demand  be  made,  which  the  per- 
son indemnifying  is  bound  to  pay,  and  notice  be  given  to 
him,  and  he  refuse  to  defend  the  action,  in  consequence  of 
which  the  person  to  be  indemnified  is  obliged  to  pay  the  de- 
mand, that  is  equivalent  to  a  judgment,  and  estops  the  other 
party  from  saying  that  the  defendant  in  the  first  action  was 
not  bound  to  pay  the  money."  And  in  this  case  it  wns  held 
that  notice  was  not  essential,  and  that  the  plaintiff  could  re- 
cover his  costs  though  no  notice  had  been  given.t 

Its  operation  has  been  still  more  clearly  defined  by  Lord 
Chief  Justice  Tenterden,  in  an  action  on  a  breach  of  the  cove- 
nant of  title  :  "  The  only  effect  of  want  of  notice  in  such 
[328]  a  case  as  this  is  to  let  in  the  defendants  to  show  that  the 
plaintiff  has  no  claim  in  respect  of  the  alleged  loss,  or  not 
to  the  amount  alleged ;  that  he  made  an  improvident  bargain, 
and  that  the  defendant  might  have  obtained  better  terms,  if 

*  So  in  Massachusetts,  it  has  been  said  on  good,  he  must  abide  the  loss ;  and  in  a  suit 

the  subject  of  eviction,  "  There  is  no  necessity  against  his  warrantor,  the  burden  of  proof  will 

for  the  party  holding  a  covenant  of  warranty  be  on  the  plaintiff."  Parson,  C.J.  in  Hamilton  v. 

to  involve  himself  in  a  lawsuit  to  defend  him-  Cutts,  4  Mass.  3.52,  353, ante;  158,  head  p.  173. 

self  against  a  title  which  he  is  satisfied  must  t  Tindall  v.  Bell,  11  Moes.  &  Wels.  228. 

ultimately  prevail.  But  he  consents  at  his  own  {  Per  Buller,  J.,  in  Dufficld  ?;.  Scott,  3  T. 

peril.  If  the  title  to  which  he  has  yielded  be  not  R.  374. 


CH.   XI.]  EFFECT   OF   NOTICE.  365 

the  opportunity  had  been  given  him."  This  was  said  in  a  case 
where  the  plaintiff  had  been  obHged  after  suit  to  settle  with  a 
party  claiming  under  title  paramount ;  and  the  court  said,  "  As 
to  the  costs,"  incurred  by  the  plaintiff  in  defending  the  action, 
"the  plaintiff  here  had  a  right  to  an  indemnity;  and  he  is  not 
indemnihed  unless  he  receive  the  amount  of  the  costs  paid  by 
him  to  his  attorney."  *  It  may,  therefore,  be  said  that  notice 
in  these  cases  is  not  necessary ;  if  given,  however,  and  the  de- 
fendant neither  endeavors  to  arrest  the  Utigation,  nor  under- 
takes to  direct  it,  he  will  be  made  responsible  for  its  result ; 
while,  on  the  other  hand,  the  only  effect  of  not  giving  it,  is  to 
throw  on  the  plaintiff  the  burden  of  showing  that  the  first  suit, 
the  costs  of  which  he  claims,  was  not  improperly  contested.! 

This  view  of  the  matter  has  been  very  fully  stated  by  Mr. 
Justice  Story,  on  the  Massachusetts  Circuit,  and  applied  to  the 
subject  of  re-insurance ;  $  and  the  Supreme  Court  of  the  United 
States  has  declared,  that  a  judgment  against  the  person  to  be 
indemnified,  if  fairly  obtained,  especially  if  obtained  on  notice 
to  the  warrantor,  is  admissible,  in  a  suit  against  him  on  his 
contract  of  indemnity ;  §  and  the  law  has  been  similarly  de- 
clared in  New  Hampshire,  on  a  suit  upon  an  execution  bond.|| 

To  these  general  rules  an  exception  was  taken  by  Lord  Chan- 
cellor Hardwicke  as  to  extents.  In  an  early  case,  where  extent 
was  taken  out  against  a  surety  to  the  crown,  and  after  contesfr 
ing  it  some  time,  he  paid  the  claim,  and  prosecuted  his 
principal  for  the  amount  paid  by  him,  including  his  [329] 
expenses,  it  was  insisted  that,  the  debt  being  a  just  one, 
and  improperly  disputed,  the  principal  should  not  be  charged 
with  the  expense  of  the  litigation ;  but  Lord  Hardwicke  said, 
"I  know  of  no  such  distinction;  "  and  then  taking  notice  that 
an  extent  is  both  an  action  and  an  execution,  and  that  the  surety 
could  not  be  supposed  prepared  to  pay  the  claim  immediately, 
he  allowed  the  demand.][  But  the  general  rule  seems  well  and 
clearly  established,  that  the  principal  shall  not  be  subjected  to 
the  expense  of  unnecessary  litigation ;  how  the  fact  is  to  be 
arrived  at,  and  on  whom  the  burden  of  proof,  will,  as  has  been 
said,  frequently  turn  on  the  question  of  notice.     Where  bail 

*  Smith  V.  Compton,  3   B.  &  Adol.  407.  be  clearly  no  defense)  that  the  action  will  be 

Dumoulin  considers  the  question  of  notice  at  settled  unless  the  party  forthwith  desire  that 

length,  and  its  effect  on  the  expenses,  both  in  it  be  defended ;  and  that  he  will  be  looked  to 

the  case  when  notice  is  given,  and  when  not  for  indemnity."     Chitty  on    Contracts,  400 ; 

given;  and  when  given  pending  the  suit;  and  on  Guaranties  and  Indemnities,  in  notis. 

as  to  the  motives  for  not  giving;  §§  150-153.  J  N.  Y.  State  Marine  Ins.  Co.  v.  Protection 

t  Mr.  Chitty  says,  "  In  cases  of  guarantee,  Insurance  Co.  1   Story,  458. 

a  notice  of  the  claim  and  action  of  the  cred-  §  Clark  v.  Carrington,  7  Cranch,  308,  322. 

itor  against  the  surety  should  always  be  given  H  French  v.  Parish,  14  N.  H.  R.  496. 

to  the  principal,  with  an  intimation  (if  there  H  Ex-parte  Marshall,  1  Atk.  262. 


366  PRINCIPAL  AND  SURETY.  [CH.  XL 

employed  a  third  party  to  find  the  principal  debtor,  and  then, 
refusing  to  pay  the  expenses  of  the  person  so  employed,  was 
sued  and  compelled  to  pay  his  bill  with  costs,  it  was  held  in  a 
suit  against  the  principal  debtor,  that  the  bail  could  recover  the 
sum  paid,  but  not  the  costs ;  Lord  Ellenborough  at  Nisi  Prius 
saying,  "  As  for  the  costs  of  the  action  which  the  plaintiff  took 
defense  to  unadvisedly,  he  should  have  either  defended  that 
action  if  the  demand  was  unfounded,  or  paid  the  money  if  it 
could  be  legally  claimed ;  but  having  defended  that  action  with- 
out foundation,  he  cannot  charge  the  defendant  with  the  costs 
incurred  in  such  an  improvident  defense."  * 

In  a  case  at  Nisi  Prius,  where  the  plaintiff,  an  auctioneer,  was 
employed  by  the  defendant  to  sell  an  estate,  and  the  title 
proved  defective,  the  purchaser  brought  suit  against  the  auc- 
tioneer for  his  deposit ;  the  auctioneer  gave  notice  to  the  de- 
fendant, who  refused  to  defend  the  suit.  The  auctioneer  then 
paid  the  deposit,  with  the  purchaser's  costs  and  his  own,  and 
brought  suit  against  the  defendant,  claiming  these  costs  and  the 
excise  duty  on  the  sale.  The  action  was  assumpsit  for  money 
paid,  with  the  usual  money  counts,  but  Lord  Ellenborough  held, 
that  as  to  the  costs,  "  there  should  have  been  a  special  count, 
inasmuch  as  the  right  to  these  costs  by  the  plaintiff  was 
[330]  not  so  apparent.  The  plaintiff  might  have  defended  the 
action  of  his  own  wrong,  and  without  any  authority  from 
the  defendant.  If  he  had  done  so,  he  would  not  be  entitled  to 
call  upon  his  principal  to  pay  the  costs,  as  they  were  incurred 
without  his  consent ; "  and,  on  the  ground  that  the  declaration 
should  have  been  special,  the  costs  were  refused.!  And  in  a 
subsequent  case.  Lord  Tenterden  decided,  that  the  accommo- 
dation acceptor  of  a  bill,  who  pays  it  to  a  bond  fide  holder  after 
action  brought,  cannot  recover  the  costs  of  such  suit  against 
a  person  who,  having  had  the  bill  delivered  to  him  for  a  pur- 
pose which  was  satisfied,  had  improperly  indorsed  the  bill  to 
the  holder.^  And  where  the  defendant  misapplied  the  plain- 
tiff's accommodation  acceptance,  and  contrary  to  liis  duty  in- 
dorsed it  over  for  value  to  a  third  person,  who  sued  the  plain- 
tiff and  recovered,  it  was  decided  by  the  English  Common  Pleas 
that  he  could  not  recover  the  costs  of  that  action  against  the 
defendant.§ 

*  Fisher  v.  Fallows,  5  Esp.  171.     No  action  t  Spurrier  v.  Elderton,  5  Esp.  1. 

will  lie  by  bail  for  his  trouble  or  loss  of  time  J  Roach  v.  Thompson,  1  Moo.  &  M.  487 ; 

in  takiiij^  a  journey  to  become  bail,  because  S.  C.  4  Car.  &  P.  194  ;  ante,  248. 

he  does  not  undertake  the  journey  as  such,  §  Blcaden   v.    Charles,  7   Bing.   246.     The 

or  labor  as  a  person  employed  by  the  defend-  claim  to  costs   was  abandoned    on   the  ar<^u- 

ant,  but  he  does  it  as  a  friend,  and  to  do  him  ment.     The  point  was  not  decided.     See  this 

kindness.     Reason  v.  Wirdnam,  1   Car.  &  P.  case  commented  on  in  Asprey  v.  Levy,  16  M. 

434.  &  VV.  851. 


CH.    XI.]  RECOVERY    OF   COSTS.  367 

In  a  case  on  a  guarantee  to  indemnify  the  plaintiff  against 
the  expense  of  a  commission  of  bankruptcy,  the  messenger  had 
sued  the  phxintiiT  I'or  his  bill  of  six  pounds.  The  plaintiff  de- 
fended the  suit,  and  claimed  sixty  pounds  costs  paid  to  the  mes- 
seno:er  in  his  suit,  and  also  his  own  costs ;  but  the  claim  was 
denied.  Lord  Tenterden  saying,  "  I  think  the  defendant  is  not 
liable  for  the  costs  beyond  the  writ ;  a  man  has  no  right,  merely 
because  he  has  an  indemnity,  to  defend  an  action,  and  put  the 
person  guaranteeing  to  useless  expense."  *  But,  on  the  other 
hand,  where  debt  was  brought  by  the  plaintiff,  as  sheriff,  against 
the  defendants,  on  a  bond  given  to  the  plaintifi'  as  surety  to  the 
jail  liberties  for  a  debtor  in  execution,  it  appeared  that  the 
sheriff  had  given  notice  to  the  defendants,  and  that  they  assisted 
in  the  defense  of  the  suit ;  it  was  held  in  New  York  that  the 
costs  of  the  suit  against  the  plaintifi'  were  properly  re- 
coverable against  the  defendants.!  The  general  princi-  [331] 
pies  Avhich  we  have  been  here  considering,  have  been 
applied  by  Mr.  Justice  Story  to  the  subject  of  re-insurance ;  and 
it  has  been  held  that  the  party  re-insured  is  entitled  to  recover 
a  full  indemnity  for  the  entire  loss  sustained  by  him,  and  also  for 
the  costs  and  expenses  which  he  has  reasonably  and  necessarily 
incurred  in  order  to  protect  himself  and  entitle  him  to  a  re- 
covery over  against  the  re-assurer.^  The  contestation  of  the 
suit,  however,  must  be  just  and  reasonable ;  the  expenses  must 
be  fairly  and  reasonably  incurred ;  the  conduct  of  the  assurers 
must  be  bond  fide,  and  in  the  exercise  of  a  sound  discretion  ;  and 
as  to  notice,  the  learned  judge  proceeded  to  say, — 

•'  It  is  precisely  in  this  view  that  the  consideration  of  notice  of  the  suit  becomes 
most  important,  even  if  it  be  not  (as  I  am  not  prepared  to  say  that  it  is)  indis- 
pensable. If  notice  of  a  suit  threatened  or  p.ending  upon  the  original  policy,  be 
given  to  the  re-assurers,  they  have  a  rare  opportunity  to  exercise  an  election 
whether  to  contest  or  to  admit  the  claim.  It  is  their  duty  to  act  upon  such  notice, 
when  given,  within  a  reasonable  time.  If  they  do  not  disapprove  of  the  contes- 
tation of  the  suit,  or  authorize  the  party  re-assured  to  compromise  or  settle  it, 
they  must  be  deemed  to  require  that  it  should  be  carried  on  ;  and  tlius,  by  just 
implication,  they  are  held  to  indemnify  the  party  re-assured  against  the  costs  and 
expenses  reasonably  incurred  in  defending  the  suit.     If  they  decline  to  interfere 

*  Gillett  V.  Rippon,  1  Moo.  &  Mai.  406.    It  in  the  statement  of  the  case,  which   was  at 

is  suggested  in  this  case,  by  Gurney,  of  conn-  Nisi  Prins.     See  Freeman's  Bank  v.  Rollins, 

sel  f(n'  plaintiff,  that  "  notice  was  given  to  the  13  Maine,  202. 

defendant,  and  he  might  have  paid  or  stoj)ped  t  Kip  v.  Brigham,  7  J.  R.  168. 
the  action ;  "  but  nothing  is  said  of  any  notice 

^  The  New  York  Central  Insurance  Company  v.  The  National  Protection  Insurance  Com- 
pany, 20  Barb.  (N.  Y.)  468. 


3G8  PRINCIPAL    AND    SURETY.  [CH.    XL 

at  all,  or  are  silent,  they  have  no  right  afterwards  to  insist  that  the  costs  and  ex- 
penses of  the  suit  ought  not  to  be  borne  by  them,  as  they  are  exclusively  under 
such  circumstances  incurred  for  the  benefit  of  the  re-assurers,  or  are  indispensable 
for  the  protection  of  the  party  re-assured." 

In  this  case  the  re-assurers  were  held  liable  to  pay  one  half 
the  costs  and  counsel  fees  incurred  by  the  assured  in  the  defense 
of  the  orginal  suit.* 

The  French  law  peremptorily  requires  notice,  if  the  surety 
desire  to  charge  the  debtor  with  his  expenses.  Its  language  is 
clear :  "  The  surety  who  has  paid,  has  recourse  against  the  prin- 
cipal debtor,  whether  he  entered  into  the  contract  of  suretyship 
with  or  without  the  knowledge  of  the  debtor.  And  he  shall 
recover  the  principal,  interest,  and  expenses ;  but  the  surety 
shall  recover  only  such  expenses  as  are  incurred  after  the  prin- 
cipal debtor  is  notified  of  the  suit  against  the  surety ;  and  the 
surety  shall  also  recover  damages  in  a  proper  case.f  ^ 

[332]  Co-Sureties. — We  have  now  to  consider  the  relative 
rights  and  liabiUties  of  co-sureties.  The  right  of  action 
of  the  surety  against  the  co-surety,  or  his  representatives,  arises 
when  the  surety  pays,  and  not  before.t  And  in  these  cases  the 
surety  is  entitled  to  recover  against  the  co-surety,  or  if  more 
than  one,  against  any  of  them,  his  aliquot  portion  of  the  sum 
paid.  It  is  not  necessary  in  such  case  to  prove  the  insolvency 
either  of  the  principal  or  of  any  of  the  co-sureties.  But,  on 
the  other  hand,  the  fact  of  the  insolvency  of  the  sureties  will 
not  increase  the  recovery  against  those  who  are  solvent.§ 

But  where  a  surety  sues  a  co-surety  for  contribution  for 
money  paid  by  the  plaintiff  on  account  of  the  principal,  it  has 
been  held  in  Alabama,  that  the  defendant  may  show  that  the 
surety  suing  for  contribution  was  indebted  to  the  principal  in  a 
larger  amount  than  he  was  compelled  as  surety  to  pay  for  the 
principal,  and  thus  defeat  the  claim  for  contribution. ||^ 

*  N.  Y.  State  Marine  Ins.  Co.  v.  Protection  de'bitcur    principal    les    poursuites    dirig^es 

Ins.  Co.  1  Story,  458  contre  elle.     EUe    a   aussi    recours    pour  les 

t  "  La  caution  qui  a  paye,  a  son  recours  dommagcs    ct   interets,    s'il   y   a  lieu.      Code 

contre  Ic  de'bitcur  principal,  soit  que  le  cau-  Civil,  art.  2028. 

tionement  ait  e'te  donne'  au  su  ou  a  I'insu  du  J  Wood  v.  Leland,  1  Met.  387. 

de'bitcur.     Ce  recours  a  lieu  tant  pour  le  prin-  §  Cowell  v.  Edwards,  2  Bos.  &  Pull.  268. 

cipal,  que  pour  les  interets  et  les  frais  ;  ne'an-  ||  Bezzell,  Adm'r,  v.  White,  13  Ala.  (N.  S.) 

mons  la  caution  n'a  de  recours  que  pour  les  422. 
frais  par  elle  faits  depuis  qu'elle  a  dcnonce  au 

1  Damages  on  bonds  of  indemnity  are  assessed  up  to  the  trial.     Spear  v.  Stacy,  26  Vt.  61. 

^  In  an  action  by  sureties  against  a  co-surety  for  contribution,  where  the  debt  was  jtaid  by  a 
transfer  of  land,  the  Supreme  Court  of  Indiana  lately  said,  "  The  price  at  which  tlie  lands  were 
received  in  payment  would,  we  think,  ordinarily  constitute  the  proper  rule.  If  they  were  taken 
on  a  compromise  of  a  doubtful  claim,  or  from  parties  of  doubtful  solvency,  at  a  price  greatly 


CH.    XI.]  EFFECT    OF   NOTICE.  369 

The  question  has  been  examined  as  to  the  right  of  the  co- 
.siirety  to  be  reimbursed  for  a  proportion  of  any  costs  paid  by 
him.  In  a  case  at  Nisi  Prius  between  co-sureties  for  a  tax  col- 
lector, it  appeared  the  plaintiff  had  been  sued  on  the  principal's 
defiiult,  and  judgment  had  been  recovered,  and  the  plaintiff 
claimed,  besides  half  the  verdict  against  him,  half  the  costs  of 
both  parties  in  the  original  suit.  But  Lord  Chief  Justice  Ten- 
terden  held  at  Nisi  Prius,  that  the  defendant  was  only  liable  for 
half  the  verdict.*  No  question  was  made  either  as  to  notice, 
or  the  necessity  of  the  suit,  nor,  would  it  seem,  could  any  such 
question  properly  arise  between  co-sureties. 

But  in  a  more  recent  case,  in  the  Exchequer,  where  the 
plaintiff  and  defendant  had  executed,  as  co-sureties,  a  warrant 
of  attorney  given  as  a  collateral  security  for  a  sum  of  money 
advanced  on  mortgage  to  the  principal,  and  on  default  being 
made  by  the  principal,  judgment  "was  entered  upon  the 
warrant  of  attorney,  and  execution  issued  against  the  [333] 
plaintiff,  it  was  held  that  he  was  entitled  to  recover  from 
the  defendant,  as  his  co-surety,  a  moiety  of  the  costs  of  such 
execution,  Parke,  B.,  saying,  "  They  are  costs  incurred  in  a  pro- 
ceeding to  recover  a  debt  for  which,  on  default  of  the  principal, 
both  the  sureties  were  jointly  liable ;  and  the  plaintiff  having 
paid  the  whole  costs,  I  see  no  reason  why  the  defendant  should 
not  pay  his  projDortion.f 

The  same  principles  which  we  have  been  considering,  are 
applied  to  claims  made  against  sureties  ;  so  it  has  been  said, 
that  if  one  becomes  surety  for  a  debtor,  the  creditor  cannot  re- 
cover from  the  surety  the  costs  of  a  fruitless  suit  against  the 
debtor  unless  he  give  notice  of  his  intention  to  sue.$ 

It  is  perfectly  well  settled  in  regard  to  sureties,  in  suits 
against  them  by  the  principal  creditor,  that  if  there  has  been 

*  Knight  V.  Hughes,  3   Car.  &  P.  467 ;  S.  principle;    for,  as  between  the  indorser  and 

C.  M.  &  M.  247.  maker  of  a  note,  there  is  no  contract  to  save 

t  Kemp  V.  Finden,  12  Mees.  &  Wels.  421.  harmless,  and  each  surety  should  stand  ready 

A  distinction  may,  perhaps,  be  taken  between  to  pay  the  debt. 

costs  incurred  in  a  suit,  and  upon  entering  up  |  Baker  v.   Garratt,  3  Bing.  56,  per  Best, 

judgment  on  a  warrant  of  attorney  ;  otherwise  C.J.     This  was  an  action  against  the  sheriff 

these  decisions  are  inconsistent,  and  if  so,  I  for  taking  insufficient  sureties  on  a  replevin 

should  consider  the  former  the  more  correct  in  bond. 


above  their  value,  perhaps  the  amount  upon  which  contribution  by  a  co-surety  would  be  esti- 
mated, would  be  their  actual  value.  The  lands  were  the  plaintiffs',  and  without  regard  to  their 
cost  they  were  clearly  entitled  to  the  increase  in  their  value,  or  the  legitimate  profits  made  by 
their  purchase,  not  exceeding,  however,  the  amount  paid  by  them  on  the  debt  for  which  the  de- 
fendant was  liable."  Jones  c.  Bradford,  25  Ind.  .305.  As  between  the  two  we  should  suppose 
the  lands  must  be  taken  at  the  value  at  which  they  were  received  in  payment  of  the  debt.  The 
measure  of  the  damages  of  the  surety  who  has  paid  the  debt  is  his  co-surety's  proportion  of  the 
amount  paid  by  him,  and  if  it  were  paid  in  something  else  than  money,  then  the  amount  of 
money  for  which  it  was  accepted  by  the  creditor. 
24 


370  PRINCIPAL    AND    SURETY.  [CH.    XI. 

no  fraud,  the  apparent  inadequacy  of  the  consideration  will  not 
exonerate  them;  and  that  in  case  of  non-payment  by  the 
debtor  they  become  liable  for  the  whole  debt,  no  matter  how 
great  the  apparent  insufficiency  of  the  remuneration  they  re- 
ceive.* ^ 

Costs  as  Between  Lessee  and  Sub-Lessee.  —  A  question  has 
arisen  on  covenants  in  leases,  as  between  lessee  and  sub-lessee, 
which  goes  to  illustrate  the  general  subject  which  we  are  now 
considering.  Elizabeth  Coppock  demised  certain  premises  to 
the  plaintiff  with  covenant  to  repair  by  lessee ;  the  plaintiff 
demised  the  premises  to  one  Finch,  for  a  portion  of  his  own 
term,  with  covenant  to  repair  and  leave  in  repair,  by  lessee. 
Finch  assigned  to  the  defendant,  who  broke  the  covenant,  by 
leaving  them  out  of  repair  at  the  end  of  the  term.  By  reason 
of  this,  the  plaintiff  was  obliged  to  pay  Elizabeth  Coppock,  the 
chief  lessor,  £10  damages  and  £100  costs  of  both  sides  in  the 
suit  brought  on  the  covenant.  On  the  question  whether  the 
costs  were  recoverable  by  the  lessee,  against  the  sub-lessee,  the 
Court  of  King's  Bench  held  they  were,  saying,  "  K  the  plaintiff 
could  not  recover  those  damages  and  costs  against  the 
[334]  defendant,  he  would  be  without  redress  for  an  injury  sus- 
tained through  the  neglect  of  the  defendant,  and  not  in 
consequence  of  his  own  default."  f 

Here  it  will  be  seen  that  there  was  no  covenant  to  indemnify 
by  the  sub-lessee  ;  and  on  this  ground  the  decision  which  I  have 
just  stated  has  been  overruled  by  the  English  Exchequer. 
Price  made  a  lease  to  Penley  of  certain  premises,  with  covenant 
that  he,  Penley,  would  repair.  Penley  underlet  to  Watts,  also 
with  covenant  to  repair;  but  the  covenants  were  dissimilar. 
Price  sued  the  plaintiff  for  breach  of  covenant  to  repair,  in  the 
original  lease.  The  dilapidations  proved  were  .£57  10s. ;  in 
addition  to  which  the  plaintiff's  costs  amounted  to  <£36,  and  the 
defendant's  to  <£40.  These  costs  were  claimed  against  Watts. 
The  judge  who  tried  the  cause  held,  that  as  there  was  no  cove- 
nant to  indemnify,  the  defendants  in  this  suit  were  not  liable  to 
costs ;  and  the  plaintiffs  were  allowed  to  recover  only  the 
amount  of  £57  lOs.,  with  leave  to  move  to  increase  it  by  the 
amount  of  costs,  £76.     On  showing  cause,  this  was  held  right, 

*  Oakley  v.  Boorman,  21  Wend.  588.  t  Neale  v.  Wyllie,  3  B.  &  Cr.  533. 

1  But  the  courts  will  go  behind  the  contract  of  a  surety  for  the  payment  of  the  whole  amount 
secured  to  be  paid  by  a  note,  and  limit  his  liability  to  the  amount  actually  paid  with  interest. 
Cobb  V.  Titus,  10  N.  Y.  198. 


CH.  xl]  lessee  and  sub-lessee.  371 

and  Parke,  B.,  said,  "  If  the  plaintiffs  had  desired  to  be  secured 
against  these  costs,  they  might  have  made  themselves  safe  by 
taking  a  covenant  of  indemnity  against  any  breach  of  covenant 
in  the  original  lease  ;  and  then  they  might  have  recovered  these 
costs."  And  after  stating  that  the  covenants  were  dissimilar,  he 
said,  "  Under  the  defendants'  contract  the  amount  of  damages 
is  the  damage  necessarily  sustained  by  the  breach  of  their  own 
covenant ;  i.  e.  the  amount  necessary  to  put  the  premises  in  the 
same  state  and  repair  in  which  the  defendants  ought  to  have 
kept  them.  If  the  plaintiffs  have  expended  more,  that  is  their 
own  fault,  for  which  the  defendants  are  not  liable."* 

We  have  already  considered  the  general  rule  by  which  the 
surety  is  denied  any  remuneration  lor  the  remote  or  indirect 
consequences  of  the  principal's  default.!  ^ 

*  Penley  v.  Watts,  7  Mees.  &  Welsby,  601.    affirms  this  case,  and  again  overrules  the  case 
Walker  v.  Hatton,  10  Mees.  &  Welsby,  249,    of  Neale  v.  Wyllie. 

t  Ante,  ch.  iii. 

^  See  as  to  the  damages  on  statutory  bonds  and  undertakings,  pest,  550,  note. 


CHAPTER  XII. 

RULE    OF    DAMAGES    AS    BETWEEN   PRINCIPAL   AND    AGENT. 

Liability  of  Agents  for  Nominal  Damages.  —  The  Measure  of  Remuneration  is  a 
Question  of  Law,  whether  the  Common  Law  Forms  of  Assumpsit  or  Case  be 
employed.  —  The  Agent  is  charged  with  the  Amount  of  the  Loss,  if  he  has  been 
guilty  of  Negligence,  whether  the  Loss  be  the  Direct  Consequence  of  his 
Neglect  or  not.  —  Cases  examined.  —  The  Agent  may  show  that  no  Loss  has 
resulted.  —  Liability  of  Principal  to  Agent.  —  Sub- Agents. 

Damages  in  these  Cases  not  Controlled  by  Form  of  Action.  — 
The  class  of  cases  which  we  next  proceed  to  consider,  presents 
some  difficulty  in  regard  to  the  arrangement  of  the  subject,  in- 
asmuch as  it  is  impossible  in  considering  it,  to  adhere  closely  to 
any  line  of  division  drawn  from  the  forms  of  action.  Demands 
made  by  principals  against  their  agents  may  be  either  said  to 
arise  from  the  breach  of  the  agent's  contract,  or  from  the  viola- 
tion of  his  duty,  and  the  actions  of  assumpsit  or  case  can  be 
indiiferently  used ;  in  the  one  instance  the  proceeding  being  ex 
contractu,  and  in  the  other  ex  delicto.  But  inasmuch  as  the 
amount  of  damages,  in  the  absence  of  any  circumstance  of  fraud 
or  other  species  of  aggravation,  is  in  either  form  of  action  a 
question  of  law  under  the  control  of  the  court,  I  shall  consider 
this  branch  of  our  subject,  as  well  as  that  springing  from  the 
liability  of  common  carriers,  under  the  general  head  of  con- 
tracts. 

In  regard  to  the  contract  of  agency,  there  is  a  very  interest- 
ing class  of  cases  growing  out  of  the  liability  of  the  principal 
for  the  act  of  the  agent.  The  maxim  of  the  civil  law.  Qui  facit 
])er  aliwn  facit  per  se,  and  the  rule  resulting  therefrom  of  Be- 
spondeat  superior,  have  been  adopted  in  our  law  to  an  extent  mak- 
ing the  principal  in  many  cases  responsible  for  the  negligence 
or  want  of  skill  of  the  party  employed  by  him.  There  is  also 
a  large  class  of  exceptions,  where  the  person  though  employed 
by  another  still  carries  on  a  separate  and  independent 
[336]  calling,  recognized  by  common  usage ;  *  but  these  cases 

*  Laupher  v.   Pointer,  5  B.  &  Cres.  547  ;     son  v.  Cubitt,  9  Mees.  &  W.  710  ;  Milligan  v. 
Quarman  v.  Burnett,  6  Mees.  &  W.  499;  Rap-     Wedge,  12  Ad.  &  Ell.  737  ;  Martin  v.  Tem- 


CH.    XII.]  PRINCIPAL    AND    AGENT.  373 

rather  regard  the  right  of  action  than  the  measure  of  com- 
pensation ;  and  so  contenting  myself  with  having  called  the 
reader's  attention  to  the  subject,  we  turn  to  that  of  the  rule  of 
damages  as  between  principal  and  agent  where  a  clear  cause  of 
action  exists. 

It  will  also  be  observed  that  the  questions  embraced  under 
the  head  which  we  are  now  considering,  are  very  closely  con- 
nected with  another  very  large  class  of  cases  growing  out  of  the 
relations  of  master  and  servant.  But  to  this,  more  particular 
attention  will  be  drawn  hereafter. 

The  Law  Fixes  the  Measure.  —  In  some  of  the  early  cases 
growing  out  of  the  contract  of  agency  it  seems  to  have  been 
held,  with  that  disregard  of  any  fixed  rule  which  we  have  had 
occasion  elsewhere  to  notice,  that  the  jury  had  an  unlimited 
control  over  the  amount  of  compensation ;  thus,  in  an  action 
against  an  attorney  for  negligence,  "  the  jury  were  told  they 
might  find  what  damages  they  pleased."  *  But  according  to  the 
more  precise  and  much  safer  view  of  the  subject  now  uniformly 
taken  in  all  cases  of  tort,  where  no  aggravation  is  proved,  the 
law  fixes  the  measure  of  damages ;  and  more  especially  is  this 
true  in  those  cases  which  we  are  now  considering,  where  the  ac- 
tion, though  it  may  be  shaped  so  as  to  be  technically,  and  in 
form,  an  action  of  tort,  is  in  reality  in  all  cases  founded  on  a 
contract  either  express  or  implied.! 

We  shall  have  elsewhere  to  consider  the  rule  in  regard  to 
sheriffs  and  other  public  officers,  who,  in  some  points  of  view, 
are  regarded  as  agents  of  the  party  employing  them.  At 
present,  our  subject  is  the  rule  of  damages  where  mere  private 
agents  have  neglected  or  disobeyed  the  express  or  implied  in- 
structions of  their  principal. 

The  law  is  perfectly  clear,  that  wherever  an  agent  violates  his 
obligation  to  his  principal,  whether  by  exceeding  his  authority, 
by  misconduct  or  omission,  and  any  damage  results  to  his  prin- 
cipal, he  is  responsible  for  such  injurious  consequence,  and 
bound  to  make  indemnity .$^ 

perley,  4  Q.  B.  298.    In  North  Carolina,  Wis-  *  Rnssell  v.  Palmer,  2  Wils.  325. 

wall  i\  lirinson,  10  Ired.  554.     See  the  subject  t  Bank  of  Orange  v.  Brown,  3  Wend.  158. 

well  discussed  by  Mullett,  J.  in  Blake  v.  Ferris,  J  Story  on  Agency,  ch.  viii. 

1  Selden,  59. 

1  In  an  action  for  the  price  of  goods  sold  by  a  factor,  a  verdict  for  the  highest  market  price 
is  proper,  in  the  absence  of  proof  of  the  price  actually  obtained.  Clark  v.  Miller,  4  Wend. 
628. 


374  PRINCIPAL    AND    AGENT.  [CH.   XH. 

[337]  Nominal  Damages.  —  We  have  already  seen,*  that 
wherever  an  engagement  is  broken,  or  an  obligation  vio- 
lated, the  law,  in  the  absence  of  the  proof  of  actual  injury,  in- 
fers nominal  damage  to  have  resulted  from  it.  In  regard  to 
agents,  however,  language  has  been  used  from  which  it  might 
be  supposed  that  this  class  of  cases  formed  an  exception  to  the 
general  rule,  and  that  unless  positive  loss  were  shown  to  have 
resulted  from  the  agent's  illegal  act,  no  recovery  whatever  could 
be  had.  Thus  says  Mr.  Justice  Story,  "  There  must  be  a  real 
loss  or  actual  damage,  and  not  merely  a  probable  or  possible 
one."  And  again  :  "  It  is  a  good  defense,  or  rather  excuse,  that 
the  misconduct  of  the  agent  has  been  followed  by  no  loss  or 
damage  whatever  to  the  principal ;  for  then  the  rule  applies, 
that  though  it  is  a  wrong  it  is  without  any  damage ;  and  to 
maintain  an  action,  both  must  concur,  for  damnum  absque  injuria 
and  injuria  absque  damno,  are  equally  objections  to  any  recov- 
ery." t  I  submit,  however,  that  this  language  has  probably  been 
used  with  reference  rather  to  the  compensation  than  to  the  right 
of  action ;  that  no  distinction  can  be  taken  in  this  respect  be- 
tween the  breach  of  an  agent's  engagements  and  that  of  any 
other  contract ;  and  that  if  the  inference  of  nominal  damage 
from  any  illegal  act  is  correct  and  logical,  it  should  apply  uni- 
formly to  all  transactions  embraced  within  the  wide  domains  of 
the  law.J 

Assuming,  then,  that  in  the  absence  of  proof  of  positive  loss, 
nominal  damage  will  be  inferred,  we  have  to  consider  those 
cases  where  actual  injury  results,  and  where,  as  I  have  said,  the 
agent  is  bound  to  make  it  good.  In  applying  this  rule,  we  shall 
find  the  distinction  taken,  to  which  we  have  already  frequently 
alluded,  between  proximate  and  remote  damage.  The  loss  for 
which  remuneration  is  sought,  need  not  be  directly  caused  by 
the  act  done  or  omitted.  It  will  be  sufficient  if  it  is  a  natural 
or  a  necessary  consequence  ;  but  remote  or  merely  possible  con- 
sequences are  excluded  from  consideration.  This  principle  will 
be  best  illustrated  by  the  cases  which  have  been  decided. 
[338]  But  it  may  be  stated  as  a  general  rule,  that  in  all  cases 
of  agency,  whether  the  agent  be  one  of  private  selection 
or  virtide  officii,  whether  factor  or  sheriff,  the  omission  or  miscon- 
duct of  the  agent  in  regard  to  the  matter  with  which  he  is 
charged  or  intrusted,  renders  him  liable  to  the  principal  in 
damages ;  and  where  he  has  been  appointed  to  obtain  or  receive 

*  Ante,  ch.  ii.  %  And  so  it  has  been  decided  in  New  Hanip- 

t  Story  on  Agency,  §§  222  and  236.     See  shire;  Frothingham  v.  Everton,  12  N.  H.  K. 

this  case  cited  in  Blot  v.  Boiceau,  3  Comstock,  239.     So,  also,  in  Blot  v.  Boiceau,  3  Comstock, 

78.  78. 


CH.   XII.]  NOMINAL   DAMAGES.  375^ 

any  given  sum  of  money,  or  security  therefor,  .and  it  appears 
that  he  was  guilty  of  misconduct,  and  that  the  money  or  security 
was  not  obtained,  these  two  facts  will,  in  the  absence  of  other 
proof,  be  treated  as  cause  and  effect.  The  negligence  will  be 
held  to  be  the  cause  of  the  loss,  and  the  sum  of  money  in  ques- 
tion or  the  security  therefor,  will  be  prima  facie  the  measure  of 
damages  sustained  by  the  principal.^  Evidence,  however,  that 
such  is  not  the  case,  that  the  negligence  was  not  and  could 
not  have  been  the  cause  of  the  loss,  or  that  the  real  damage 
is  less,  will  throw  the  burden  of  proof  back  upon  the  plain- 
tiff, and  compel  him  to  show  the  damage  he  has  actually  sus- 
tained by  the  neglect  of  the  agent. 

The  damage,  as  I  have  heretofore  had  occasion  to  say,*  must 
be  proximately  caused  by  the  act  or  omission  of  the  agent,  but 
it  need  not  be  the  direct  result  of  it.  Thus,  says  Mr.  J.  Story, 
"  If  an  agent  knowingly  deposit  goods  in  an  improper  place, 
and  a  fire  accidentally  ensue,  by  which  they  are  destroyed,  he 
would  be  responsible  for  the  loss ; "  and  so  the  Master  of  the 
Rolls  said,  speaking  of  trustees,  "  If  the  loss  had  happened  by 
fire,  lightning,  or  any  other  accident,  that  would  not  be  an 
excuse  for  them  if  guilty  of  previous  negligence."  f  In  these 
cases,  though  the  loss  is  not  the  immediate  consequence  of  the 
negligence,  but  of  the  fire,  still  it  may  be  truly  said  that  it  would 
not  have  occurred  except  from  such  negligence.^  So  if  an 
agent,  in  procuring  a  policy  of  insurance,  should  so  negligently 
execute  his  duty,  as  that  the  risk  (for  example,  a  peril  of  the 
seas  by  which  a  loss  was  caused)  should  not  be  included,  al- 
though the  loss  was  directly  owing  to  the  peril  of  the  seas,  still 
it  was  proximately  owing  to  the  negligence  of  the  agent, 
and  the  principal  may  accordingly  recover.  [339] 

Insurance  Brokers. —  These  questions  very  frequently  arise 
between  merchants  and  insurance  brokers  or  factors.  So  in  a 
case§  where  the  defendants,  in  taking  out  a  policy  for  the  f»lain- 
tiffs,  had  omitted  "  a  liberty  to  touch  at  the  Canary  Islands," 
and  having  touched  there,  and  being  captured,  the  underwriters 
refused  to  pay  on  the  ground  of  deviation.  Lord  Ellenborough 
held,  that  the  plaintiffs  were  entitled  to  recover  a  verdict  for 
the  sum  insured,  deducting  the  premiums.     Again,  in  a  case  || 

'    *  Ante,  ch.  iii.  |  See   Williams    v.   Littlefield,    12    Wend. 

'    t  Story  on  Agency,  §  218 ;  Caflfrey  v.  Darley,    362. 

6  Vesey,'488,  495.  §  Mallough  v.  Barber,  4  Campb.  150. 

II  Park  V.  Hamond,  4  Campb.  344. 

1  See  this  passage  commented  on  in  Charles  v.  Altin,  15  C.  B.  46. 


376  PRINCIPAL    AND    AGENT.  [CH.    XII. 

Avhere  the  defendant,  in  effecting  a  policy,  had  departed  from 
his  instructions,  and  the  vessel  being  lost,  the  underwriters,  in 
consequence  of  the  agent's  neglect,  were  not  liable  ;  two  of  the 
underwriters  for  £200  having  paid  the  loss,  and  a  third  for  the 
same  sum  having  become  bankrupt,  Gibbs,  C.  J.,  held  that  the 
plaintiff  was  entitled  to  recover  the  amount  directed  to  be  in- 
sured, less  the  £400  paid,  and  the  £200  subscribed  by  the 
bankrupt  underwriter;  and  the  plaintiff  accordingly  took  a  ver- 
dict for  the  balance.* 

In  a  case  in  New  York,  where  premiums  had  been  paid  at 
Savannah  to  an  agent  of  underwriters  doing  business  at  New 
York,  and  a  bill  was  filed  against  the  company  to  compel  the 
execution  of  a  policy,  Mr.  Senator  Golden  said,  "Suppose  an 
action  had  been  brought  against  the  Savannah  agent  for  not 
sending  the  premium  to  New  York  in  due  time,  can  there  be  a 
doubt  that  the  appellant  would  have  recovered  in  a  court  of 
law,  and  that  the  measure  of  damages  would  have  been  the 
amount  which  was  to  have  been  insured,  and  for  which  the  pre- 
mium was  paid  ?  "  f 

Again,  if  an  agent  who  is  bound  to  procure  insurance  for  his 
principal,  neglects  to  procure  any,  and  a  loss  occurs  to  his  prin- 
cipal from  a  peril  ordinarily  insured  against,  the  agent  will  be 
bound  to  pay  the  principal  the  full  amount  of  the  loss  occasioned 
by  his  negligence. 

In  a  case  on  the  Pennsylvania  circuit,t  the  late  learned  Mr. 
Justice  Washington  charged, — 

r3401  "  That  in  case  a  merchant  is  in  the  habit  of  effecting  insurance  for  his 
correspondents,  and  is  directed  to  make  an  insurance,  and  neglects  to 
do  so,  he  is  liimself  answerable  for  the  losses  as  an  insurer,  and  entitled  to  a  pre- 
mium as  such.  That  the  amount  of  loss  for  which  an  underwriter  who  had  sub- 
scribed the  policy  would  have  been  answerable  is  the  only  measure  of  damages 
against  him.  If  he  can  excuse  himself  for  not  having  effected  the  insurance  he 
is  answerable  for  nothing ;  if  he  cannot  excuse  himself,  he  is  answerable  for  the 
whole." 

And  it  appears  that,  on  exception  to  the  charge,  this  judg- 
ment was  affirmed  in  the  Supreme  Gourt  of  the  United  States. 

The  same  point  was  laid  down  in  another  case,  by  the  same 
able  judge,§  still  more  broadly:  "The  law  is  clear,  that  if  a 
foreign  merchant  who  is  in  the  habit  of  insuring  for  his  corre- 

*  See  this  case,  6  Taunt.  495,  where  a  new  J  Morris  v.   Summerl,  2  Wash.   C.  C.  R. 

trial  was  refused,  but  nothing  was  said  as  to  203  (1808). 

the  measure  of  damages.  §  De  Tastett  v.  Crousillat,  2  Wash.  C.  C. 

t  Perkins  v.  Washington  Ins.  Co.  4  Cowen,  R.  132. 
645  and  664. 


CH.    XII.]  BANKERS.  377 

spoiident  here,  receives  an  order  for  making  an  insurance,  and 
neglects  to  do  so,  or  does  so  dillerently  from  his  orders,  or  in  an 
insulficient  manner,  lie  is  answerable  not  for  damages  merel}^ 
but  as  if  he  were  himself  the  underwriter ;  and  he  is  of  course 
entitled  to  the  premium." 

Bankers.  —  If  a  bank  receive  a  note  for  collection  in  another 
State,  and  neither  collects  it  nor  gives  the  owner  notice  of  non- 
payment, nor  returns  it  till  barred  by  the  statute  of  limitations, 
and  there  be  no  evidence  of  the  insolvency  of  the  maker,  the 
measure  of  damages  is  the  amount  of  the  note  less  the  charges 
for  collection.* 

It  has  been  settled  in  New  York,  that  on  a  deposit  of  the  bill 
of  exchange  with  a  banker  for  collection  in  another  State  where 
it  was  payable,  the  banker  was  liable  to  the  holder  for  any  neg- 
lect or  omission  of  duty,  in  respect  of  such  collection  on  the  part 
of  his  agent  or  the  notary  employed  by  him  in  the  foreign 
State;  t^  and  on  the  authority  of  this  case  it  has  also  been 
decided  that  where  a  person  undertakes  the  collection  of  a  bond 
and  mortgage,  and  covenants  in  express  terms  "  to  take  proper 
means  to  collect  the  mortgage,"  he  is  responsible  for  the  default 
of  the  solicitor  employed  by  him,  and  the  amount  of  the  bond 
and  mortgage  is  the  prima  facie  measure  of  damages.^ 

*  AVingate  v.  Mechanics'  Bank,  10  Barr,  t  Allen  v.  Merchants'  Bank,  22  Wend.  215. 
104.  t  Hoard  v.  Garner,  3  Sandf.  179. 

1  The  same  doctrine  was  re-asserted  in  The  Montgomery  County  Bank  v.  The  Albany  City 
Bank,  3  Sold.  (7  N.  Y.)  459,  reversing  S.  C.  8  Barb.  396;  and  again  in  The  Commercial  Bank 
of  Pennsylvania  v.  The  Union  Bank  of  New  York,  1  Kern.  (11  N.  Y.)  203.  In  the  latter  case 
the  Bank  of  AVilmington  was  the  owner  of  a  bill  of  exchange  payable  at  sight,  at  Troy,  and 
indorsed  and  transmitted  it  to  the  Commerical  Bank  of  Pennsylvania,  nnder  an  arrangement 
by  which  the  latter  collected  and  retained  the  proceeds  of  paper  thus  remitted  to  it,  and  with 
the  same  redeemed  the  circulating  notes  of,  and  paid  drafts  drawn  by  the  Bank  of  Wilmington. 
The  Commercial  Bank  indorsed  and  transmitted  the  bill  to  the  Union  Bank  of  New  York,  its 
correspondent  in  New  York,  for  collection,  and  the  same  was  by  the  latter  sent  to  the  Troy 
City  Bank  for  the  same  purpose.  Held,  that  the  Commercial  Bank  of  Pennsylvania  could 
recover  of  the  Union  Bank  of  New  York,  the  amount  of  the  bill,  if  collected  by  the  Troy  City 
Bank,  or  if  the  same  were  lost  by  the  omission  of  the  latter  to  charge  the  drawer  and  indorser. 
See  also,  the  same  case  in  the  court  below,  reported  19  Barb.  391. 

In  an  action  against  bankers  for  omitting  to  present  a  note  for  payment,  and  to  charge  the 
indorser,  the  amount  of  the  note  is  prima  facie  the  rule  of  damages  (Allen  v.  Suydam,  20 
Wend.  321  ;  reversing  S.  C.  17  W.  368),  but  the  defendants  can  show  in  mitigation  that  the 
indorser  was  insolvent,  or  not  worth  property  enough  to  enable  the  amount  to  be  collected  by 
process  on  a  judgment,  and  if  the  indorser  is  shown  to  be  wholly  insolvent,  it  is  said  by  the 
Supreme  Court  of  New  York  that  the  defendants  are  entitled  to  a  verdict.  The  plaintitfs  are 
intitled  to  so  much  damages  as  they  appear  to  have  sustained  with  reference  to  the  amount  of 
the  indorser's  ))roperty.  Bridge  v.  Mason,  45  Barb.  37.  (But  with  great  deference  it  may  be 
questioned  whether  nominal  damages  ought  not  in  such  a  case  to  be  allowed,  notwithstanding 
the  insolvency  of  the  indorser.  A  banker's  neglect  to  present  the  note  received  by  him  for 
collection  imports  a  breach  of  duty,  since  on  no  other  ground  could  a  recovery  be  had  for  its 
non-presentment  And  if  there  be  a  fault  in  not  presenting  the  note,  the  law,  we  think,  implies 
that  some  damages  are  sustained  by  the  holder,  although  proof  of  the  maker's  destitution  of 
means  would  reduce  them  to  a  nominal  amount.     See  Blot  v.  Boiceau,  3  Comst.  78.) 


378  PRINCIPAL   AND    AGENT.  [CH.    XII. 

Factors  and  other  Agents.  —  In  a  case  in  the  English  Com- 
mon Pleas,*  the  question  was  carefully  considered  by  a 
[341]  very  able  court.  The  plaintiff  put  lime  on  board  the 
defendant's  barge,  to  be  carried  from  Medway  to  London; 
the  barge  deviated ;  while  out  of  her  course  a  tempest  ensued, 
in  consequence  of  which  the  sea  communicated  Avith  the  lime, 
and  by  reason  of  this  the  barge  took  fire ;  the  master  then,  for 
the  safety  of  himself  and  crew,  ran  her  on  shore ;  and  the  result 
was,  that  both  the  vessel  and  cargo  were  lost.  It  was  insisted 
for  the  defendants  that  the  deviation  was  not  a  sufficiently  prox- 
imate cause  of  the  loss  of  the  lime  to  entitle  the  plaintiff  to  re- 
cover. But  a  verdict  having  been  given  for  the  plaintiff,  on  a 
motion  for  a  new  trial,  Tindal,  C.  J.,  in  delivering  the  opinion 
of  the  court,  said,  "  We  think  the  real  answer  to  the  objection 
is,  that  no  wrong-doer  shall  be  allowed  to  qualify  or  apportion 
his  own  wrong,  and  that  as  a  loss  has  actually  happened  while 
his  wrongful  act  was  in  operation  and  force,  and  which  is  attrib- 
utable to  his  wrongful  act,  he  cannot  set  up  as  an  answer  to  the 
action,  the  bare  possibility  of  a  loss  if  his  wrongful  act  had  never 
been  done.  It  might  admit  of  a  different  construction  if  he 
could  show,  not  only  that  the  same  loss  might  have  happened, 
but  that  it  must  have  happened,  if  the  act  complained  of  had  not 
been  done ;  but  there  is  no  evidence  to  that  extent  in  the  pres- 
ent case."  And  this  reasoning  is  adopted  by  Mr.  Justice  Story 
in  his  work  on  Agency.t 

In  Pennsylvania,  where  a  party  in  London  consiged  goods  to 
a  correspondent  in  Philadelphia,  to  be  delivered  to  a  third  party, 
only  in  case  of  his  paying  the  amount  or  giving  satisfactory  secu- 
rity, and  the  agent  delivered  the  goods  without  requring  either 
payment  or  security,  —  it  was  held,  that  the  agent  had  thereby 
made  himself  liable  for  the  full  amount  of  the  original  debt, 
with  a  reasonable  compensation  for  the  delay  of  paymentj^ 

Such,  too,  is  the  language  of  all  the  most  eminent  authors  of 
our  law.  "In  this,"  to  use  the  clear  language  of  Mr,  Sergeant 
Marshall,§  "  as  in  all  other  cases  where  a  man,  either  by  an  ex- 

*  Davis  V.  Garrett,  6  Bing.  716  (1830).  J  Walker  v.  Smith,  4  Dall.  389. 

t  Chapter  viii.  §  218.     See  to  S.  P.  Parker        §  On  Insurance,  book  i.  ch.  viii.  §  2,  297. 
V.  James,  4  Camp.  112. 

1  See  American  Express  Co.  v.  Dunlevy  (Supreme  Court  of  Indiana),  3  Am.  Law  Reg.  (N. 
S.)  266.  So  in  a  late  case  in  the  English  Common  Pleas,  where  agents,  notwithstanding  what 
the  jury  found  were  instructions  not  to  part  with  certain  goods  consigned  to  them  until  they 
had  received  their  price,  caused  the  goods  on  their  arrival  in  London  to  be  transhipped  on 
board  a  vessel  named  by  them,  taking  the  mate's  receipt  in  their  own  names,  and  the  vessel 
sailed  to  Melbourne  with  the  goods  on  board  without  the  vendee  paying  for  them,  the  agents 
were  held  liable,  and  the  value  of  the  goods  was  the  measure  of  the  jjlaintilfs  damages.  The 
Stearine  Kaarsen  Pabrick  Gonda  Co.  v.  Heintzmann,  17  C.  B.  (N.  S.)  56. 


CH.  xil]  recovery  of  costs.  379 

press  or  implied  undertaking,  engages  to  do  an  act  for 
another,  and  has  either  wholly  neglected  to  do  it,  or  does  [342] 
it  improperly  or  imskillfully,  an  action  on  the  case  will  lie 
against  him  to  recover  a  satisfaction  for  the  loss  of  damage  re- 
sulting from  his  negligence,  carelessness,  or  want  of  skill."     In  an 
action  ajj-ainst  a  broker  for  neglisirence  or  unskillfulness  in  effect- 
ing  an   insurance,  "  the  plaintiff,"  says  the  same  author,*  "  is 
entitled  to  recover  the  same  amount  as  he  might  have  recovered 
against  the  underwriters  had  the  policy  been  properly  effected." 
"  And  so,"  says  Mr.  Phillips,!  "  the  agent  puts  himself  in  the 
place  of  the  underwriters,  and  must  pay  the  loss,  or  the  part  of 
it  for  which  the  underwriter  is  not  liable,  but  for  which  he  would 
have  been  liable  had  the  policy  been  made  according  to  the 
instructions,  or  in  such  manner  as  the  principal  had  a  right  to 
expect  and  require."  t 

The  same  principle  was  applied  in  an  action  of  assumpsit,^ 
where  the  defendants  had  been  employed  as  factors  to  settle  with 
underwriters  as  for  a  total  loss.  The  defendants  adjusted  the 
loss  at  20  per  cent,  and  canceled  the  policy ;  and  the  court  said, 
"  If  the  defendants,  as  agents  or  factors  of  the  plaintiffs,  have, 
through  mistake  or  design,  disobeyed  their  instructions,  they 
are  undoubtedly  responsible,  and  are  to  be  considered  as  substi- 
tuted for  the  insurers.  This  was  a  point  conceded  on  the  argu- 
ment ; "  and  a  motion  for  a  new  trial  on  the  ground  of  excessive 
damao-es  was  denied. 

Limits  op  Compensation. — But  the  plaintiff  can  only  have 
judgment  for  the  same  sum  which  in  point  of  law  he  might  have 
recovered  on  the  policy,  and  not  for  any  amount  which  the  in- 
dulgence or  liberality  of  the  underwriters  might  possibly  have 
induced  them  to  pay.  So,||  where  the  plaintiff  had  requested 
insurance  to  be  effected  at  Liverpool  on  certain  slaves,  and  the 
defendant  had  neglected  it,  it  was  contended  that  though  the 
plaintiff  could  not  have  recovered  the  value  of  the  slaves 
in  an  action  against  the  underwriters,  yet  that  in  point  of  [343] 
fact  these  slaves  were  frequently  the  subject  of  insurance 
at  Liverpool,  where  the  loss  was  always  paid  by  the  underwriters 
without  disputing  the  question ;  and  that  consequently  the 
plaintiff  might  recover  the  value  of  them  in  this  action,  because 
by  means  of  the  defendant's  negligence  the  plaintiff  had  sus- 

*  Vol.  1,  3000,  b.  1,  ch.  viii.  §  2.  J.  R.   84  ;  Miner  v.  Tajrcrt,  3  Bin.  204;  De 

t  On  Insurance,  vol.  2,  566,  ch.  22.  Tastett  v.  Crousillat,  2  Wash.  C.  C.  R.  132  ; 

t  Belaney  v.   Stoddart,  1    T.  R.  22 ;    Wil-  Harding  v.  Carter,  1  Park  on  Insurance,  5. 

kinson  v.  Coverdale,  1  Esp.  75 ;  Wallace  r.  §  Rundle  v.  Moore,  3  J.  C.  36. 

Telllair,  cited  1   Esp.  76  ;    Thome  v.  Deas,  4  ||  Webster  v.  De  Tastett,  7  T.  R.  157. 


380  PRINCIPAL    AND    AGENT.  [CH.    XII. 

tained  the  loss,  "  But  the  court  were  clearly  of  opinion  that 
the  slaves  were  not  the  subject  of  insurance,  and  that  the  plain- 
tiff could  not  recover  in  this  action  more  than  he  could  have 
recovered  in  an  action  against  the  underwriters."  *  "  And  so," 
says  Mr.  Justice  Story ,t  "  there  must  be  a  real  loss  or  actual 
damage,  and  not  merely  a  probable  or  possible  one."  So,  if  the 
ship  deviate,  or  the  voyage  or  insurance  be  illegal,  or  the  prin- 
cipal had  no  interest,  or  the  voyage  as  described  in  the  order 
would  not  have  covered  the  risk,  —  in  all  such  cases  the  agent 
will  not  be  responsible. 

Nor  will  the  plaintiff  in  such  an  action  be  allowed  the  costs  of 
an  unsuccessful  suit  against  the  underwriters,  unless  such  action 
was  necessary,  or  brought  by  the  direction  of  the  agent.  So,$ 
where  the  plaintiff  had  been  nonsuited  in  an  action  against  the 
"imder writers,  on  the  ground  of  concealment  of  material  informa- 
tion, and  in  the  suit  against  his  agent,  claimed-  to  include  the 
costs  of  the  action  on  the  policy ;  Lord  Eldon  said,  that  there 
was  no  necessity  to  bring  that  action  to  entitle  the  plaintiff  to 
recover  in  the  aforesaid  case,  and  as  it  did  not  appear  that  the 
action  on  the  policy  was  brought  by  the  desire  or  with  the  con- 
currence of  the  present  defendant,  he  ought  not  to  be  charged 
with  the  costs  of  it ;  and  this  is  in  analogy  to  the  rule,  as  we 
have  seen  it  laid  down  between  principal  and  surety. 

Actual  Loss  the  Criterion.  —  But  assuming  that  the  prin- 
cipal is  entitled  to  demand  of  the  defaulting  agent  remuneration 
for  his  loss,  the  embarrassing  question  constantly  recurs ;  what 
is  the  limit  of  the  compensation  that  he  seeks  ?  The  general 
rule  undoubtedly  is,  in  this  as  in  all  other  cases  of  contract,  that 
the  damage  actually  sustained  is  the  criterion  of  remuneration. 
So  in  the  State  of  Alabama,  where  an  agent  was  instructed  not 
to  sell  cotton  for  less  than  14  cents  a  pound,  it  was  held  that  a 
disregard  of  these  orders  did  not  authorize  the  principal 
[344]  to  recover  up  to  the  limit  he  had  set,  but  that  the  crite- 
rion was  the  price  at  which  other  cotton  of  that  quality 
had  been  sold  during  the  season.§  So,  too,  when  the  plaintiff 
had  instructed  the  defendant  not  to  sell  a  horse  for  less  than 
$500,  and  the  orders  were  disobeyed,  it  was  nevertheless  held 
that,  notwithstanding  the  instructions,  the  plaintiff  could  only 
recover  the  actual  value  of  the  animal.|| 

But  I  confess  the  reasoning  of  these   cases  appears  to  me 

*  See  also,  Fomin  v.  Oswell,  3  Camp.  357.  §  Austill  v.  Crawford,  7  AJa.  335. 

t  Agency,  §  222.  ||  Ainsworth  v.  Partillo,  13  Ala.  (N.  S.)  460  ; 

X  Seller  v.  Work,  Marsh,  on  Ins.  243,  5th  and   see,  to  same  point.  Blot  v,  Boiceau,  3 

Eng.  ed.  part  i.  ch.  viii.  Comst.  78. 


CH.    XII.]  PROFITS.  381 

doubtful.  Where  an  agent  accepts  a  consignment  with  limits  of 
sale,  and  by  selling  contrary  to  orders  puts  it  out  of  his  power 
to  return  the  goods,  or  the  price  understood  and  fixed  on  before- 
hand, it  seems  the  least  he  is  legally  bound  to  do  is  to  pay  the 
value  at  which  the  owner  had  previously  appraised  them.^ 

In  a  case  in  the  King's  Bench,*  the  plaintiffs,  who  had  shipped 
certain  goods  on  board  the  Mart/  Stevens,  to  be  carried  from 
Liverpool  to  Trieste,  brought  their  action  against  the  owners  of 
the  ship  on  the  ground  that  the  vessel  had  deviated,  and  hav- 
ing subsequently  been  captured,  the  plaintiffs  had  thus  lost  the 
benefit  of  a  policy  of  insurance.  The  cost  price  of  the  goods, 
with  the  shipping  charges,  amounted  to  £4,411  135.  '^d.  The 
plaintiffs  had  paid  for  premium  of  insurance,  <£720  IGs.  ^d.  The 
defendants  had  paid  the  plaintiffs  the  sum  of  £4,411  13^.  9c?.,  but 
refused  to  pay  the  £720  16.s.  6c/.  And  Lord  Ellenborough  said 
that  the  premiums  were  not  recoverable. 

"  The  plaintiffs,"  said  tlie  learned  judge,  "  were  entitled  to  recover  the  value 
of  their  goods  on  board  the  ship  at  the  time  she  was  captured  by  means  of  the 
deviation.  They  had  actually  received  the  cost  price,  together  with  the  ship- 
ping charges.  I  have  no  evidence  before  me  that  the  goods  were  worth  more. 
The  case  is  silent  as  to  the  profits  of  the  adventure.  Had  there  been  no  in- 
surance, I  could  not  have  said,  without  proof,  that  the  goods  were  worth  more 
than  the  cost  price  and  shipping  charges,  and  I  cannot  say  that,  by  the  mere  act 
of  insurance,  the  value  of  the  goods  is  enhanced  by  the  amouut  of  the  pre- 
miums." 

This  decision  may,  with  great  deference,  be  questioned.  Here 
the  plaintiffs  had  actually  disbursed  the  sum  of  £720, 
which  became  of  no  value  to  them  by  the  act  of  the  de-  [345] 
fendant;  and  it  would  seem  that  the  burden  of  proof 
should  have  been  thrown  on  the  defendant,  obliging  him  to 
prove  that  the  disbursement  in  question  could  have  been  of  no 
service  to  the  plaintiffs.^ 

*  Parker  v.  James,  4  Camp.  112  (1814). 

1  Where  a  consignee  was  instructed,  unless  he  coukl  obtain  22s.  a  barrel  for  a  cargo  of  flour 
on  its  arrival  to  hold  it  until  a  newly  enacted  tariff  should  "  have  produced  its  results,"  hut 
sold  it  prematurely  and  in  violation  of  the  instructions,  as  was  found  by  the  jury  to  whom  the 
question  of  violation  was  submitted  at  the  trial,  it  was  held  by  the  Superior  Court  of  the  city 
of  New  York  that  in  computing  the  damages  to  be  recovered,  if  any,  by  the  consignor,  the 
jury  were  to  determine  the  time  when  the  flour  might  reasonably  and  prudently  have  been 
sold,  and  having  done  so,  the  consignee  was  to  be  charged  with  the  amount.  Ilis  advances 
and  expenses  were  to  be  credited  him  with  interest,  and  the  balance  with  interest  from  the 
time  the  sale  might  have  properly  been  made,  the  plaintitF  was  entitled  to  recover.  The  judg- 
ment was  reversed  by  the  Court  of  Appeals  (21  N.  Y.  386)  on  the  ground  that  the  factors  had 
been  vested  with  a  discretion  which  they  had  rightfully  exercised,  and  did  not  violate  their 
instructions.  The  rule  of  damages  was  therefore  not  considered  on  the  appeal.  Millbank  v. 
Dennistoun,  1  Bosw.  246. 

^  But  may  not  this  decision  be  maintained  on  the  ground  that  the  amount  paid  furnished  a 


382  principal  and  agent.  [ch.  xil 

Agents  Failing  to  Ship  Goods  as  Directed  are  Liable  for 
THEIR  Value  at  the  Port  of  Destination.  —  A  case  in  the  Su- 
preme Court  of  the  United  States  *  exhibits  another  species  of 
injury  inflicted  by  an  agent  on  a  principal.  Cunningham  k  Co., 
of  Boston,  owners  of  the  Halcyon,  sent  her  from  Havana  to  the 
defendants  below,  Bell,  De  Yough  &  Co.,  with  directions  to 
invest  of  the  freight  (which  was  about  4,600  petsos),  2,200 
petsos  in  marble  tiles,  and  the  balance  in  wrapping-paper,  to  be 
shipped  by  the  same  vessel  to  Havana.  The  defendants  dis- 
obeyed the  directions,  and  invested  the  whole  in  wrapping- 
paper.  The  tiles  would  have  made  a  considerable  profit,  the 
paper  made  a  heavy  loss.  Trial  and  verdict  for  the  plaintiff; 
exception  and  writ  of  error.  The  plaintiffs  in  error  (the  defend- 
ants below),  insisted  that  Cunningham  &  Co.  were  entitled  to  no 
more  than  the  value  of  the  money  at  Leghorn,  which  ought  to 
have  been  invested  in  tiles,  and  not  its  value  in  Havana ;  or,  in 
other  words,  that  the  value  of  2,200  petsos  at  Leghorn,  with 
interest,  and  not  the  value  of  the  tiles  at  Havana,  ought  to  be 
given.  But  the  court  overruled  this,  saying,  "  that  it  would  be 
tantamount  to  a  declaration  that  the  breach  of  contract  consisted 
in  the  non-payment  of  two  thousand  two  hundred  petsos,  not  in 
the  failure  to  invest  that  sum  in  tiles.  Speculative  damages  de- 
pendent on  possible  successive  schemes,  ought  never  to  be  given; 
but  positive  and  direct  loss,  resulting  plainly  and  immediately 
from  the  breach  of  orders,  may  be  taken  into  the  estimate. 
Thus,  in  this  case,  an  estimate  of  possible  profit  to  be  derived 
from  investments  at  the  Havana  of  the  money  arising  from  the 
sale  of  the  tiles,  taking  into  view  a  distinct  operation,  would 
have  been  to  transcend  the  proper  limits  which  a  jury  ought  to 
respect ;  but  the  actual  value  of  the  tiles  themselves  at  the 
Havana  affords  a  reasonable  standard  for  the  estimate  of  dam- 
ages.! ^ 
[346]  So  in  Louisiana,  an  agent  failing  to  ship  goods,  which 
he  was  directed  by  the  principal  to  do,  is  liable  for  the 
actual  value  of  the  goods  at  the  port  of  destination.^:     It  is 

*  Bell  V.  Cunningham,  3  Peters,  59  (1830).  J  Ryder  v.  Thayer,  3  La.  Ann.  R.  149.     In 

t  This  case  will  be  found  reported  at  Nisi  this  case  exemplary  damages  were  claimed ; 

Prius,  5  Mason,  161,  where  Story,  J.,  told  the  but  the  court  said,  "  In  case  of  a  breach  of 

jury,  in  very  general  terms,  that  they  were  at  contract,  whether  by  the  negligence  or  fraud 

liberty    to   compensate   the   plaintiffs   for   the  of  a  party,  no  other  sum  can  be  allowed  as 

actual  loss  sustained  in  consequence  of  the  de-  damages  than  that  which  fully  indemnifies  the 

fendants'  default,  but  were  not  at  liberty  to  creditor." 
give  vindictive  damages. 

complete  indemnity  as  far  as  could  be  ascertained  ?     Had  the  policy  not  been  avoided,  this 
was  all  that  could  have  been  recovered  on  it,  as  the  insurers  would  have  been  entitled  to  the 
premium. 
1  So  Farwell  v.  Price,  30  Mo.  587. 


CH.    XII.]  ACTUAL    DAMAGES.  383 

proper  to  notice  that  this  allowance  of  the  value  which  the 
goods  would  have  had  at  the  place  intended  for  the  sale  amounts 
to  an  allowance  of  profits,  on  the  principles  which  we  have  here- 
tofore had  occasion  to  consider.*^ 

In  New  York,  the  rule  that  has  been  stated  was  early  applied 
to  a  case  of  considerable  magnitude,!  and  carried  even  to  a 
greater  extent.  Le  Guen  being  owner  of  a  large  quantity  of 
cotton  and  indigo,  employed  the  defendants,  Gouverneur  & 
Kemble,  to  sell  it  for  him.  They  sold  it  to  Gomez,  Lopez  & 
Livera  for  $122,415.  3G,for  which  the  purchasers  gave  their  prom- 
issory notes,  payable  in  a  year.  The  cargo  was  to  be  shipped 
to  France ;  and  it  was  stipulated  by  a  written  contract,  that  the 
proceeds  of  the  property  in  France  should  be  first  applied 
towards  payment  of  the  purchase-money,  and  further,  that 
Governeur  &  Kemble  might  have  it  at  their  option  to  receive  the 
whole  or  any  part  of  the  cotton  at  any  port  where  the  vessel 
carrying  the  property  might  discharge  in  Europe.  The  plain- 
tiff, Le  Guen,  made  repeated  applications  to  the  defendants  to 
make  election  to  receive  the  purchase-money  out  of  the  pro- 
ceeds of  the  cargo  in  Europe,  and  to  give  an  authority  by  which 
the  plaintiff  might  receive  the  surplus  thereof,  after  the  defend- 
ants had  retained  a  sufficient  sum  to  indemnify  them  for  all 
their  advances  and  responsibilities  on  account  of  the  plaintiff. 
This  the  defendants  refused  to  do  ;  and  for  this  violation  of  their 
duty  as  agents,  the  plaintiff  brought  an  action,  charging  them 
with  the  price  agreed  to  be  paid  for  the  property  by  Gomez  & 
Co.  Benson,  J.,  in  delivering  the  opinion  of  the  Supreme 
Court,  said  (p.  4G6) :  — 

"The  remaining  question  is  as  to  the  rule  by  which  the  jury  have  assessed  the 
damages,  and  which  from  the  record  appears  to  have  been  the  amount  agreed  on 
by  the  contract  as  the  price  of  the  cotton  and  indigo.  I  have  ah-eady 
mentioned  such  of  the  rights  of  tlie  factor  as  can  have  any  relation  to  the  [3471 
question  between  the  present  parties.  I  now  briefly  state  lus  duty  gen- 
erallj'^  to  be,  that  he  is  to  follow  the  orders  of  his  principal ;  and  for  a  breach  of 
these  orders  he  is  to  answer  in  damages  to  his  principal ;  if  the  breach  is  merely 

*  Vide  ch.  iii.  p.  69,  et  seq.  t  Le  Guen  v.  Gouverneur  &  Kemble,  1  J. 

Cases,  436  (1800). 

1  Where  a  principal  consi<;ns  property  to  his  factor  with  instructions  to  sell  it  upon  its  ar- 
rival, the  latter  is  bound  to  follow  the  instructions,  and  sell  for  the  price  it  will  command ;  and 
if  he  do  not,  he  will  become  liable  for  the  damage  his  principal  may  sustain  in  case  of  a  fall  in 
the  market.     Evans  v.  Root,  3  Seld.  (7  N.  Y.)  186. 

When  a  factor  intrusted  with  goods  for  sale  on  commission,  pledges  them  for  advances 
made  to  him,  and  gives  the  pledgee  authority  to  sell  them  to  reimburse  himself,  the  rule  of 
damages  to  which  the  principal  is  entitled  is  the  difference  between  the  value  of  the  goods  at 
the  time  of  the  conversion  and  their  proceeds  when  sold  by  the  pledgee.  Kelly  v.  Smith,  1 
Blatchf.  C-  C  R.  290. 


384  PRINCIPAL    AND    AGENT.  [CH.    XII. 

partial,  and  as  to  certain  parcels  or  particulars  only,  he  shall  not  be  held  to  answer 
further  than  as  to  such  parcels  or  particulars ;  but  if  the  breach  is  such  as  to  in- 
volve the  whole  of  the  property  intrusted  to  him,  he  shall  then  be  held  to  answer 
for  the  value  of  the  whole  of  the  property,  and  as  such  value  was,  at  the  time  the 
breach  of  orders  took  place  ;  and  if  the  property  consisted  in  credits,  to  answer  to 
the  amount  of  the  credits ;  and  the  principal  may  from  that  moment  abandon  to 
him  the  whole  of  the  property." 

The  real  question  decided  as  to  the  measure  of  damages, 
appears  still  more  fully  from  the  points  taken  on  the  argument 
of  the  writ  of  error  which  was  brought  upon  this  judgment.  It 
appears  by  these  points  that  the  defendants  insisted  that  they 
should  have  been  allowed  to  show  that  the  plaintiff,  Le  Guen, 
had  in  reality  sustained  no  loss,  that  the  property  had  sold  at  a 
ruinous  sacrifice,  and  that  they  should  have  been  j)ermitted  to 
prove  what  the  proceeds  of  the  cargo  in  Europe  really  were. 
For  that  purpose  they  say  a  witness  who  was  in  Europe  and 
superintended  the  sales  had  attended  the  trial.  The  plaintiff, 
on  the  other  side,  contended  that  no  inquiry  should  have  been 
allowed  as  to  the  actual  damasre.  And  the  Court  of  Errors 
affirmed  the  judgment  of  the  Supreme  Court.^ 

The  Agent  may  show  the  Loss  would  have  Occurred  not- 
withstanding HIS  Fault. — This  case  is,  however,  as  to  the  measure 
of  damages,  substantially  overruled  by  a  very  recent  case,  which 
I  now  proceed  to  examine.  And  it  seems  at  length  to  be  well 
settled,  that  if  orders  have  been  disobeyed,  and  injury  results, 
the  loss  shall  prima  facie  be  ascribed  to  the  disobedience  of 
orders,  and  that  in  the  absence  of  conflicting  proof,  the  prima 
facie  evidence  shall  be  deemed  conclusive ;  that  the  plaintiff  can 
only  recover  such  damage  as  it  appears  from  the  evidence  cer- 
tain or  probable  that  he  has  actually  sustained  ;  and  that  the 
agent  always  is  to  be  at  liberty  to  show  that  if  the  order  had 
been  obeyed,  the  same  damage  w^ould  have  resulted,  or  that 

the  real  loss  is  much  less  than  the  plaintiff's  claim.* 
[348]       In  an  action  on  the  case  for  negligence  f  in  omitting, 

within  a  reasonable  time,  to  present  a  draft  for  accept- 

*  It  is  true  that  Lansing,  J.,  said  that,  "  the  this  ought  not  to  alter  the  rule  of  damages, 

refusal  of  Gouverneur  &  Kenible   to   author-  if   to   be  governed    by   the    consideration   of 

ize  Le  Guen  to  receive  such  surplus  was   a,  compensation  for  injury  actually  done.     If,  on 

violation  of  their  trust,  which  amounts  to  full  the  other  hand,  the  case  showed  fraud  or  mal- 

evidence   of  an  intent  to  concert  tlie  whole   to  ice,    then   a   much    larger    discretion    should 

tlieir  own  use  regardless  of  the  interests  or  in-  have  been  left  to  the  jury, 
structions  of  their  principals."     This  assimi-        t  Suydam  v.  Allen,  20  Wend.  321. 
lates  the  case  to  an  action    of   trover.     But 


1  For  the  whole  amount  of  the  purchase  money. 


CH.    XII.]  ACTUAL   D.\MAQES.  385 

ance,  the  liability  of  the  defendants  was  admitted.  The  judge 
of  the  Superior  Court,  where  the  cause  was  tried,  charged 
"  that  the  court  and  jury,  having  no  knowledge  of  what  the 
amount  of  damages  was,  except  from  the  proof  of  the  amount 
of  the  draft,  the  jury  would  find  the  verdict  for  the  plaintiffs 
for  the  draft  and  for  the  interest  thereon."  A  verdict  having 
been  found  for  the  plaintiffs,  the  Supreme  Court,  after  reciting 
the  part  of  the  charge  in  question,  said,  "  Certainly,  if  there 
were  anything  appearing  in  mitigation  it  should  have  been  put 
to  the  jury.  The  difticulty  lies  in  discovering  any  real  ground; 
the  jury  must  have  been  left  to  decide  by  the  merest  conjec- 
ture. The  case  seems  to  have  been  prima  facie  one  of  simple 
total  loss,  by  the  ftiult  of  the  defendants  below."  But  the 
Court  of  Errors  reversed  this  judgment,  on  the  ground  that  the 
amount  of  actual  damages  sustained  should  have  been  left  to 
the  jury.*     The  chancellor  said, — 

"  Where  there  is  a  reasonable  probability  that  the  bill  would  have  been 
accepted  and  paid,  if  the  agent  had  done  his  duty ;  or  where,  by  the  negligence  of 
the  agent,  the  liability  of  the  drawer  or  indorser,  who  was  apparently  able  to  pay 
the  bill,  has  been  discharged,  so  that  the  owner  of  the  bill  cannot  legally  recover 
against  such  drawer  or  indorser,  I  admit,  the  agent  by  whose  negligence  the  loss 
has  occurred  is,  prima  facie,  liable  for  the  whole  amount  thereof  with  interest,  as 
damages,  unless  he  is  able  to  satisfy  the  court  and  jury  that  the  whole  amount 
of  the  bill  has  not  been  actually  lost  to  the  owner  in  consequence  of  such  negli- 
gence. The  case  under  consideration,  however,  is  one  of  a  very  different  de- 
scription. Here  it  is  perfectly  evident,  from  the  testimony  of  one  of  the  drawees, 
that  the  draft  would  not  have  been  accepted  at  any  time  after  it  was  received  by 
the  Aliens  for  collection  ;  as  the  drawees  had  received  express  directions  from  the 
drawer  not  to  accept,  nor  would  they  have  accepted  it  even  without  such  a  pro- 
hibition, unless  they  had  previously  been  advised  so  to  do  by  the  drawer.  The 
fact  also,  that  the  drawer's  credit  was  not  good  at  the  time  this  draft  was  received 
for  collection,  he  having  suffered  his  note  to  Boyd  &,  Suydam  to  lie  under  protest 
for  some  time,  and  the  express  directions  given  by  him  to  the  drawers  not  to  ac- 
cept this  draft,  rendered  it  highly  improbable  that  he  would  have  paid  the  draft 
himself  to  save  his  credit  if  it  had  been  sent  back  protested  at  an  earlier  day. 
From  the  facts  of  the  case,  therefore,  I  think  there  was  no  ground  for  supposing 
that  the  owners  had  sustained  any  actual  damage  from  the  mistake  of 
the  Aliens  in  not  sending  on  the  bill  for  acceptance  immediately  after  they  [349j 
received  it  for  collection  in  New  York  ;  or  that  their  chance  of  obtaining 
payment  from  the  drawer  was  materially  impaired  by  the  delay  of  the  pi'otest  for  a 
few  days.  Under  the  circumstances  of  this  case,  therefore,  I  think  the  jury  should 
have  been  instructed  that,  upon  the  evidence,  the  plaintiffs  were  only  entitled  to 

*  Mr.  Senator  Verplanck  delivered  a  very  able  dissenting  opinion,  as  to  the  rule  of  dam- 
ages. 

25 


386  PRINCIPAL   AND    AGENT.  [CIL    XII. 

nominal  damages,  or  at  least,  they  should  have  been  told  to  find  only  such  dam- 
ages as  they  should,  from  the  evidence,  believe  it  probable  the  plaintifi's  might 
have  sustained  by  the  delay  in  presenting  the  draft  for  acceptance  immediately ; 
for  I  do  not  see  how  it  is  possible  for  any  one  to  believe,  or  even  to  suppose  it 
probable,  from  this  evidence  that  the  whole  amount  of  this  draft  was  in  fact  lost 
to  the  plaintiff's  below,  by  the  delay  of  the  Aliens  in  presenting  it  to  the  drawees, 
and  giving  notice  of  the  dishonor  thereof  immediately  to  the  drawer,  who  never 
intended  that  it  should  be  accepted  and  paid.* 

In  a  case  in  Pennsylvania  where  the  principal  sued  the  agent 
for  neglect,  the  neglect  complained  of  was  in  regard  to  the 
liability  of  the  defendant  for  a  debt  of  one  Young,  which  he 
had  failed  to  collect  and  secure.  The  plaintiff  insisted  that  the 
defendant  had  by  his  neglect  made  himself  liable  for  the  whole 
amount  of  the  debt.  The  defendant,  on  the  other  hand,  con- 
tended that  the  plaintiff  was  bound  to  prove  his  actual  loss,  and 
that  he  could  recover  no  more.  But  the  Supreme  Court  of 
Pennsylvania  held  that  the  burden  lay  on  the  defendant,  as  to 
the  actual  loss  ;  and,  no  such  proof  being  given,  that  the  defend- 
ant had  made  himself  liable  to  the  plaintiff  for  the  full  value  of 
the  goods  placed  in  the  hands  of  Young,  or  at  least  for  the 
amount  of  money  produced  by  the  sales  made  of  them.f  In 
this  decision,  the  court  recognized  as  a  general  rule,  however, 
that  for  an  agent's  omission  to  keep  the  principal  regularly  in- 
formed of  the  agent's  transactions  and  the  state  of  the  interests 
intrusted  to  him,  the  measure  of  damages  is  to  be  proportioned 
to  the  actual  loss  sustained ;  with  the  exception,  where  the  in- 
formation transmitted  is  such  as  to  induce  the  principal,  in  the 
adaptation  of  his  operations  to  his  means,  to  rely  on  an  out- 
standing debt  as  a  fund  on  which  he  may  confidently  draw, 
that  in  such  case  the  agent  makes  the  debt  his  own. 

Interest.  —  In  Massachusetts,  it  has  been  held,  that  an 
[350]  agent  who  unreasonably  neglects  to  inform  his  principal 
of  the  receipt  of  money,  is  liable  for  interest,  although 
he  acted  in  good  faith.$ 

Sales  below  Limit.  —  In  New  Hampshire,  where  goods  are 
consigned  §  to  a  commission  merchant  or  factory  for  sale,  and 
the  factory  sells  at  a  price  below  the  limit  without  notice,  it  has 

*  See   this  case  commented    on    and    ex-  Eawle,  229.    In  Massachusetts,  see  Amoiy  v. 

plained,  as  to  the  liability  of  banks  for  negli-  Hamilton,  17  Mass.  103. 

gence  in   such   cases,  in  the  Bank  of  Orleans        J  Dodge  v.  Perkins, '9  Pick.  368;  Clark  v. 

V.   Smith,  3    Hill,  560.      See  also,  Hoard  v.  Moody,  17  Mass.  145,  149. 
Garner,  3   Sandf.  S.  C.  R.  179,  and  o«/e,  357.         §  Frotliingham   v.  Everton,    12   N.   H.   R. 

t  Brown  v.  Arrott,  6    Watts  &  Scrg.  402 ;  239. 
S.   C.   6   Wharton,  9;    Harvey  v.  Turner,  4 


i 


CH.    XII.]  SALES    AGAINST     ORDERS.  387 

been  held  that  the  consignor  may  recover  damages,  or  may 
have  the  amount  of  the  damages  allowed  in  a  suit  brought  by 
the  factory  to  recover  his  advances.  The  measure  of  damages 
in  such  a  case  is  the  amount  of  injury  sustained  by  the  sale 
contrary  to  the  orders  of  the  principal.  If  no  actual  loss  ap- 
peared to  have  been  sustained  in  consequence  of  the  wrongful 
act,  the  principal  will  be  entitled  only  to  nominal  damages. 
And  in  accordance  with  this  case  it  has  been  held  in  New  York, 
v.diere  a  factor  sold  contrary  to  his  principal's  orders,  and  below 
his  limits,  that  he  could  discharge  himself  from  liability  by 
showing  that  the  articles  in  question  could  not  be  made  to  bring 
more  than  the  sum  which  they  produced,  or  in  other  words 
that  the  goods  were  never  worth  more  than  they  actually  sold 
for.* 

In  Louisiana,  where  wine  was  consigned  by  a  New  York 
house  to  the  defendant,  a  New  Orleans  agent,  to  sell  at  a 
limited  price,  the  defendant,  after  keeping  it  a  long  time  on 
hand,  reshipped  it  without  further  directions,  to  the  plaintiffs  at 
New  York ;  who  received  it,  but  under  protest,  and  wrote  to 
the  defendant  that  they  abandoned  the  property,  and  held  it 
merely  as  belonging  to  the  defendant,  and  subject  to  his  order. 
It  was  afterwards  sold  by  them  at  auction  in  New  York,  but  at 
a  price  below  the  first  limit,  and  they  then  sued  the  defendant 
for  the  damages  resulting  from  the  disobedience  of  their  orders, 
insisting  that  they  were  entitled  to  recover  the  full  value  of  the 
wine.  But  the  Supreme  Court  of  Louisiana  held  that  the 
measure  of  damages  ought  to  be  the  value  of  the  wine  at  the 
highest  market  price  in  New  Orleans,  at  any  time  before  the 
suit  brought,  adding  thereto  the  freight  to  New  York,  and  de- 
ducting therefrom  the  value  of  the  wine  at  New  York,  where 
the  plaintiffs  resold  it.f 

Sales  against  Orders.  —  In  an  action  brought  by  [351] 
principal  against  factor,  for  selling  cotton  contrary  to 
orders,  it  appeared  that  it  was  sold  on  the  third  of  June,  and 
the  plaintiff  insisted  it  should  not  have  been  sold  before  the 
twenty-third  of  August.  The  Supreme  Court  of  the  United 
States  said,  "  Supposing  the  sale  made  by  the  defendants  on  the 
third  of  June  to  have  been  tortious  and  in  violation  of  orders, 
the  plaintiff  had  his  election,  either  to  claim  damages  for  the 
value  of  the  cotton  on  that  day,  as  a  case  of  tortious  conversion, 
or  for  the    value  of  the    cotton  the    twenty-third  of  August 

*  Blot  I'.  Boiceau,  3  Comstock  R.  78  ;  S.  C.        t  Nelson  v.  Morgan,  2  Martin,  L.  R.  257. 
1  Sandf.  S.  C.  R.  Ill  ;  and  vide  ante,  344. 


388  PRINCIPAL   AND    AGENT.  [CH.    XII. 

following,  when  the  letter  of  the  plaintiff  of  the  twenty-third 
of  July  was  received,  which  authorized  a  sale.  If  the  price 
of  cotton  on  that  day  was  higher  than  at  any  intermediate 
period,  he  was  entitled  to  the  benefit  thereof.  If,  on  the  other 
hand,  the  price  was  lower,  he  could  not  justly  be  said  to  be 
damnified  to  any  extent  beyond  what  he  would  lose  by  the  dif- 
ference of  the  price  of  cotton  on  the  third  of  June,  and  the 
price  on  the  twenty-third  of  August."^ 

Liability  of  Principals  to  Agents.  —  We  turn  now  to  the 
claims  of  agents  against  their  principals  ;  or  of  servants  against 
their  masters,  for  we  have  already  observed  that  the  contracts 
of  agency  and  of  service  are  nearly  allied.  We  have  hereto- 
fore *  considered  the  question,  how  far  the  principal  is  liable  to 
pay  his  servant  or  other  agent,  who  is  engaged  for  a  specific 
time,  and  without  sufficient  reason  quits  the  employment.  But 
the  question  often  arises  to  what  extent  the  principal  is  liable 
when  on  the  other  hand  he  discharo-es  the  ag-ent  without  lesral 
excuse.  In  a  recent  English  case  f  the  plaintiff  was  employed 
as  clerk,  to  do  the  business  of  shipping  agent  at  Southampton, 
under  a  contract  of  hiring  for  tw^o  years,  at  £150  for  the  first 
year,  £160  for  the  second  year,  and  also  50  per  cent,  on  the 
gross  profits.  The  defendant,  alleging  disobedience  of  orders 
and  misappropriation  of  moneys,  discharged  him.  The  jury 
found  these  issues  against  the  defendant  and  gave  the  plaintiff 
a  verdict  for  twelve  months'  salary  and  twelve  months'  share  of 
profits.  One  year's  salary,  within  a  trifling  sum,  appears  to 
have  been  paid.  A  motion  was  made  to  set  aside  the  verdict 
on  the  ground  that  the  damages  were  excessive,  but  it  was 
denied.  Wilde,  C.  J.,  said,  "  With  resj^ect  to  the  amount  of 
damages,  it  was  for  the  jury  to  say  what  amount  of  com- 
[352]  pensation  the  plaintiff*  was  entitled  to  for  the  defendant's 
breach  of  contract."  And  Maule,  J.,  said,  "  There  is  no 
ground  for  saying  that  the  damages  were    miscomputed.     It 

*  Ante,  215,  et  seq.  t  Smith  v.  Thompson,  8  C.  B.  44. 

1  Where  a  stock  broker  illegally  or  without  authority  sells  stock  left  with  him  or  pledged  as 
security  lor  collateral  advances,  he  is  liable  in  New  York  according  to  the  late  decisions,  as  we 
shall  see  in  considering  the  rule  in  cases  of  conversion  of  personal  property  (post  479,  note)  for 
the  difference  between  the  price  realized  and  the  highest  market  price  of  the  stock  up  to  the 
trial  of  the  action,  where  the  action  is  brought  and  tried  within  a  reasonable  time. 

And  where  brokers  after  agreeing  not  to  sell  the  plaintiff's  stock  until  the  following  day, 
to  enable  him  in  the  mean  time  to  increase  the  amount  of  funds  dejiosited  with  them  as  secu- 
rity against  loss  by  liolding  the  stock,  sold  it  the  samC  day,  the  difference  between  the  price 
for  which  the  stock  was  sold  and  that  for  which  the  plaintiff  could  have  bought  it  the  next  day 
was  held  to  be  as  favorable  a  rule  of  damages  as  the  brokers  could  claim.  Clarke  v.  Meigs,  10 
Bosw.  337. 


CH.    XII.]  LIABILITY    OF    PRINCIPAL.  389 

must  be  borne  in  mind  that  embezzlement  was  imputed  to  the 
plaintiff."  The  result  at  which  the  verdict  arrived  seems  not 
open  to  ol)servation.  But  the  language  of  the  court  appears 
by  no  means  equally  free  from  objection.  Why,  in  a  case  of 
this  kind  of  simple  contract,  is  it  for  the  jury  to  fix  without 
control  the  defendant's  liability  ?  and  what  has  a  charge  of  em- 
bezzlement set  up  in  the  plea,  to  do  with  the  quantum  of  dam- 
ages ?  If  in  a  case  of  this  description  there  is  no  rule  of  dam- 
ages, it  would  seem  to  be  difficult  to  declare  one  in  any  ;  and  if 
an  unfounded  defense  is  to  have  the  effect  of  turning  an  action 
of  contract  into  one  of  tort,  and  to  give  the  uncontrolled  dis- 
cretion of  the  subject  to  the  jury,  the  principles  which  govern 
the  measure  of  damages  will  in  all  cases  be  in  great  risk  of 
being  lost  sight  of  That  there  is  a  rule  in  cases  of  this  kind, 
seems  not  to  me  to  be  doubtful ;  and  it  is,  that  the  plaintiff  has 
a  right  to  recover  the  stipulated  wages  for  the  full  time,  subject 
to  the  defendant's  right  to  recoup  whatever  the  plaintiff  might 
during  the  period  have  reasonably  earned.-^ 

So,  again,  where  it  was  agreed  between  the  plaintiff  and  the 
defendant  that  in  case  of  a  vacancy  occurring  in  the  command 
of  a  certain  East  India  vessel  the  plaintiff  should  be  appointed 
for  two  voyages,  it  was  held  that  the  jury  might  give  damages 
for  what  the  plaintiff  could  have  earned  on  both  the  voyages, 
and  that  they  were  not  limited  to  one.*  Here,  too,  I  appre- 
hend that  the  jury  were  bound  to  give  their  verdict  for  both  the 
voyages,  subject,  of  course,  to  the  right  to  recoupment.^ 

*  Richardson  v.  Mellish,  2  Bing.  229. 

1  See  King  v.  Steiren,  14  Penn.  99  ;  Ream  v.  Watkins,  27  Mo.  (6  Jones)  516;  Hartland  v. 
The  Geueral  Exchange  Bank  (limited),  14  L.  T.  R.  (N.  S.)  863  (N.  P.).     Seea«fe,  212. 

'  In  actions  for  wages  brought  against  the  employer  by  the  servant  or  employee  discharged 
withont  cause  before  the  end  of  the  contract  of  service,  "  a  compensation  is  intended  to  be 
allowed,"  says  Mr.  Justice  Story,  "  which  shall  be  a  complete  indemnity  for  the  illegal  dis- 
charge, and  this  is  ordinarily  measured  by  the  loss  of  time  and  the  expenses  incurred  by  the 
party."  Emerson  v.  Rowland,  1  Mason  C.  C.  R.  45-iJ3.  The  recovery  should  be  for  the 
difterence  between  the  sum  he  should  have  received  under  the  contract  and  that  which  he  has 
or  it  is  shown  might  have  received  elsewhere,  the  object  being  to  compensate  him  for  his  loss 
of  wages  as  far  as  it  might  not  have  been  prevented  wholly  or  in  part  by  his  own  want  of  due 
diligence.  His  readiness  to  perform  and  prevention  by  his  employer  are  not  necessarily  equiv- 
alent, as  regards  the  question  of  damages,  to  actual  performance.  Whitaker  v.  Sanditer,  1 
Duvall  (Ky.),  261  ;  Wright  v.  Faulkner,  1  Ala.  Select  Cases,  231  ;  Fowler  v.  xVnnour,  24  Ala. 
194  {(inte,  224,  note  1 ) ;  Williams  v.  Anderson,  9  Minn.  50.  The  same  rule  of  recovery  has  been 
applied  to  the  case  of  a  ship  carpenter  who  had  engaged  for  the  voyage,  where  the  shipjiing 
master  failed  to  give  him  timely  notice  of  the  departure  of  the  ship,  which  sailed  without  him. 
Maguire  v.  Woodside,  2  Hilt.  59.  There  is  some  disparity  in  the  decisions  in  the  case  of  the 
servant's  failure  to  obtain  employment,  as  to  whether  the  burden  of  proof  lies  on  him  or  the 
employer  to  explain  it ;  and  in  Mississippi  it  is  held  that  the  servant,  to  recover  for  the  time 
during  which  he  was  out  of  employment,  must  show  due  diligence  in  the  endeavor  to  procure 
a  situation.  But  the  general  rule  is  the  other  way.  Thompson  v.  Wood,  1  Hilt.  (N.  Y.)  93. 
And  in  Minnesota,  the  Supreme  Court  of  that  State,  while  acquiescing  in  the  doctrine  that  the 
employee's  claim  must  be  reduced  by  the  amount  which  it  was  proved  he  had  earned  or  might 
have  earned  elsewhere,  as  too  well  settled  to  be  disturbed,  remarked  that  it  failed  "  to  see  on 
what  sound  principle  a  man  was  to  be  punished  in  this  manner  "  for  a  failure  in  the  perform- 


390  PRINCIPAL    AND    AGENT.  [ciI.    XII. 

Principal  Liable  for  Agents'  Loss  and  Expense  Innocently 
Sustained.  —  It  has  been  very  justly  decided  in  Massachusetts, 
that  a  factor  cannot  recover  commissions  when  there  is  a  loss  to 
a  greater  amount  occasioned  by  his  negligence.^  But  it  is  well 
settled  that  if  an  agent,  without  default,  incurs  losses  or  dam- 
ages in  the  course  of  transacting  the  business  of  his  agency, 
or  in  following  the  instructions  of  his  principal,  he  will  be  enti- 
tled to  full  compensation  therefor.f^     So  an  agent  has  been 

*  Dodge  V.  Tileston,  12  Pick.  328.  t  Story  on  Agency,  §  339. 

ance  of  the  abstract  duty  not  to  be  idle,  "  or  why  the  employer  should  be  relieved  from  the  con- 
sequences of  a  willful  breach  of  contract  because  the  employee  has  committed  a  breach  of 
a  moral  obligation."  Williams  r.  Anderson,  9  Minn.  50.  In  a  case  lately  decided  by  the 
Su])reme  Court  of  the  United  States,  it  was  contended  that  the  rule  requiring  diligence  in 
seeking  employment  ought  to  be  extended  to  the  case  of  a  public  officer  wrongfully  ousted  from 
his  office.  But  the  court  held  that  "no  such  rule  can  be  applied  to  public  offices  of  personal 
trust  and  confidence."     United  States  v.  Addison,  6  Wallace,  291. 

In  accordance  with  the  rule  already  stated  (ow^e,  215),  the  servant  who  has  not  served  the 
whole  time  of  the  contract  of  service  cannot  recover  iinless  sooner  discharged.  Givhan  v. 
Dailey,  4  Ala.  .336;  Miller  v.  Goddard,  34  Maine,  102  ;  Badgley  i;.  Heald,  4  Gilman  (HI.),  64. 
In  Connecticut,  however,  a  less  strict  rule  obtains.  Ilyan  v.  Dayton,  25  Conn.  188.  So  in 
New  Hampshire,  the  action  is  maintainable  in  such  a  case  on  the  principles  of  a  quantum  meruit, 
provided  it  be  brought  after  the  expiration  of  the  term.  Hartwell  v.  Jewet,  9  N.  H.  249.  And 
as  it  is  the  actual  loss  and  not  prospective  damage  which  is  recoverable  in  these  actions,  the 
Supreme  Court  of  Wisconsin,  in  a  case  where  a  clerk  engaged  at  a  salary  of  $2,000  a  year  for 
five  years  was  discharged  without  cause  at  the  end  of  the  first  year,  and  brought  his  action 
without  waiting  for  the  end  of  the  term,  held  that  he  could  recover  damages  measured  by  the 
contract  down  to  the  day  of  the  trial  only,  with  such  deductions  as  were  proper  on  the  prin- 
ciples already  stated.  Gordon  v.  Brewster,  7  Wis.  355.  In  the  Nisi  Prius  case  of  Hartland  v. 
The  General  Exchange  Bank,  14  L.  T.  R.  (N.  S.)  863  (supra),  however,  where  the  plaintiff 
who  had  been  engaged  as  manager  of  a  banking  company  for  a  term  of  three  years,  was  wrong- 
fully dismissed  at  the  end  of  four  months,  and  thereupon  immediately  brought  his  action  for 
the  rest  of  his  salary,  Mr.  Justice  Willes  instructed  the  jury  to  take  the  salary  into  account, 
but  to  reduce  the  amount  by  the  probabilities  of  the  plaintiff  having  other  employment  during 
the  time. 

It  was  held  in  Missouri,  in  a  case  not  very  fully  reported  (Cunningham  v.  Steamboat  Low 
Water,  28  Mo.  338),  where  a  hand  employed  on  board  a  steamboat  at  a  stipulated  rate  of  wages 
for  a  trip,  was  discharged  and  put  off  the  boat  without  cause  before  the  end  of  the  trip,  and  the 
boat,  owing  to  an  accident  to  her  machinery,  was  detained  for  some  days  beyond  the  regular 
period  of  her  trip,  that  he  could  recover  wages  only  for  the  time  usually  consumed  in  a  trip, 
and  not  for  that  of  the  additional  detention.  This  decision  seems  to  us  to  admit  of  question, 
and  not  to  be  fully  borne  out  by  the  case  of  the  Elizabeth  (2  Dod's  Adm.  403),  which  is  re- 
feiTcd  to  as  autliority  for  it.  That  case  decided  that  when  a  ship  bound  to  St.  Petersburg 
from  Portsmouth  and  back,  had  met  with  an  accident,  the  repairs  necessitated  by  which  de- 
tained her  in  a  northern  port  where  she  would  have  been  blocked  up  by  the  ice  and  detained  all 
winter,  the  master  had  a  I'ight  to  discharge  his  crew,  on  condition  of  paying  their  passage  back 
to  England,  and  wages  up  to  the  time  of  such  return.  This  was  a  reasonable  and  justifiable 
course,  and  furnished  the  crew  with  a  full  and  fair  indemnity,  which  in  the  other  case  the  boat 
hand  fixiled  to  receive.  To  bring  the  latter  case  within  the  authority  or  analogy  of  the  former, 
the  hand  should  have  been  brought  or  sent  back  to  the  place  where  he  was  shipped,  or  in- 
demnified for  the  expense  of  getting  there,  and  have  received  wages  for  the  time  required  for 
his  return. 

Where  the  action  is  for  an  injury  of  which  the  wages  lost  by  the  employee  is  a  conseqtience, 
the  rule  of  indemnity  in  respect  to  them,  may  require  a  larger  measure  than  the  time  of  the  con- 
tract. Thus,  where  the  mate  of  a  vessel  was  unlawfully  wounded  by  the  master  in  a  foreign 
port  during  a  voyage  for  which  he  had  shipped,  and  was  in  consequence  taken  on  shore,  de- 
tained there,  and  subjected  to  medical  treatment,  it  was  held  in  an  action  against  the  owners 
or  the  injury,  his  compensation  for  lost  time  was  not  restricted  to  the  period  of  the  contract. 
He  was  entitled  to  damages  equivalent  to  the  injury,  which  included  wages  for  such  reasonable 
ime  as  was  lost  by  his  detention,  and  till  he  could  return  home,  besides  the  medical  and  other 
expenses  necessitated  by  the  wound.     Croucher  v.  Oakman,  3  Allen  (Mass.),  185. 

^  Where  an  agent  employed  for  an  agreed  commission  to  sell  land  finds  a  purchaser  at  the 
stipulated  price,  but  the  principal  declines  to  sell  and  revokes  the  agent's  authority,  the  law 


CH.   XII.]  COMMERCIAL   AGENTS.  391 

allowed  to  recover  the  damages  paid  by  him  on  a  pro-  [353] 
tested  bill  drawn  for  his  principal's  benefit  *  So  an 
agent,  who  was  indemnified  against  the  commission  of  an  act 
which  was  not  known  at  the  time  to  be  a  trespass,  but  which 
proved  to  be  such,  was  allowed  to  recover  against  his  principal 
the  amount  of  the  judgment  recovered  against  himself.f  And 
it  is  quite  innnaterial  in  these  cases,  whether  the  agent  have  a 
promise  to  indemnify  him  or  not ;  the  law  implies  an  agree- 
ment on  the  part  of  the  principal  to  save  him  harmless.t 

It  has  been  said  that  if  an  agent  abroad,  as  for  example,  a 
foreign  factor,  should,  at  his  own  risk  and  peril,  evade  the  pay- 
ment of  foreign  customs  and  duties,  he  would  still  be  entitled 
to  charge  them  against  his  principal,  as  if  they  had  been  actu- 
ally paid.  But  the  lively  moral  sense  of  Mr.  Justice  Story  is 
shocked  at  this  idea ;  and  he  justly  says,  that  it  may  well  be 
doubted  whether  this  doctrine  is  sound  or  maintainable.! 

Where  merchants  here  gave  a  written  engagement  to  their 
agent  at  the  Havana,  to  save  them  harmless  from  all  costs,  dam- 
ages, and  expenses  which  might  arise  in  consequence  of  any 
lawsuit  which  then  was  or  might  be  brought  against  them  for 
the  recovery  of  freight  or  average  on  the  cargo  of  a  certain 
ship,  it  was  held  that  the  agents  were  entitled  to  recover  for 
money  which  they  were  obliged  to  pay  in  consequence  of  legal 
proceedings  on  an  award  made  previous  to  obtaining  the  writ- 
ten engagement. II 

Liability  of  Sub-agents  to  Factor.  —  It  has  been  held,  that 
where  a  factor  employs  a  sub-agent  for  the  purpose  of  carrying 
out  the  instructions  of  the  principal,  if  the  sub-agent,  by  neg- 
lecting the  directions  of  the  factor,  commit  a  breach  of  duty 
for  which  the  factor  is  compelled  to  answer  the  principal  in 
damag-es,  the  factor  will  be  entitled  to  recover  over  from  the 

*  Ramsay  v.  Gardner,  11  J.  R.  439.  §  Story  on  Agency,  §  443,  and  authorities 

t  Coventry  v.  Barton,  17  J.  R.  142.  there  cited. 

j  Powell  V.   Trustees  of  Newburgh,  19  J.  ||  Hill  v.  Packard,  5  Wend.  375.     See  also, 

B.  284;  D'Arcy  v.  Lyle,  .5  Binn.  441  ;  Stock-  Rogers  v.  Kneeland,  10  Wend.  219.     S.  C.  in 

ing  V.  Sage,   1    Day,  Conn.  522;    Story  on  Error,  13   Wend.  114.     In  Pennsylvania,  see 

Agency,  §  339.  Tiernan  v.  Andrews,  4  Wash.  C.   C.  R.  564, 

and  Elliott  v.  Walker,  1  Rawle,  126. 

implies  a  contract  on  the  part  of  the  principal  to  pay  what  is  reasonable,  and  it  seems  the 
measure  of  damages  would  be  the  whole  commission.  Prickett  v.  Badger,  1  C.  B.  (N.  S.)  296. 
See  also,  as  to  the  broker's  right  to  full  commissions  from  the  seller,  where  he  finds  a  party 
ready  to  purchase  on  the  terms  proposed,  although  without  his  default  the  sale  is  not  com- 
pleted. Moses  V.  Bicrling,  31  N.  Y.  462  ;  Doty  y.  Miller,  43  Barb.  N.  Y.  529.  As  to  actions 
relating  to  attorneys'  fees,  under  special  contracts,  see  Ratcliff  v.  Baird,  14  Te.x.  43  ;  Myers  v. 
Crockett,  Ibid.  257. 


392  PRINCIPAL    AND    AGENT.  [OH.    XII. 

sub-agent  the  damages  which  he  has  so  sustained.  This 
[354]  is  the  measure  of  his  damages.     Thus,*  where  the  plain- 

tifi*  had  been  commissioned  by  Gevers  &  Co.  to  ship  a 
quantity  of  best  Porto  Rico  tobacco  for  them  to  Holland,  the 
defendants  were  employed  by  the  plaintiff  to  execute  the  order, 
but  bought  Porto  Rico  tobacco  not  of  the  best  quality,  and  which 
was  proved  at  the  trial  to  be  very  bad.  Gevers  &  Co.  refused 
to  receive  it,  and  sued  the  present  plaintiff  He  notified  the 
defendants  to  furnish  a  defense  to  the  action.  Gevers  &  Co.  re- 
covered, and  it  was  contended  in  the  action  against  the  sub- 
agent,  that  the  measure  of  damages  was  the  amount  recovered 
by  Gevers  &  Co.  in  the  former  suit,  with  the  costs  thereof  The 
defendants  insisted  that  the  true  measure  of  damages  was  either 
the  difference  between  the  relative  prices  of  the  article  in  the 
London  market,  or  between  the  relative  values  in  the  market  in 
Holland ;  but  the  court  held  that  the  measure  of  relief  should 
be  the  damages  and  costs  recovered  in  the  first  action  against 
the  plaintiff — the  plaintiff  undertaking  to  assign  the  tobacco 
to  the  defendants,  or  to  sell  it  and  account  to  the  defendants  for 
the  proceeds ;  and  this  having  been  so  held  at  the  sittings,  a 
rule  for  a  new  trial  was  refused.!  ^  And  on  the  analogous  cases 
of  warranties  and  sureties,  it  seems  very  rightly  decided. 

*  Mainwaring  v.  Brandon,  8  Taunt.  202  t  Vide  Russell  on  Factors  and  Brokers, 
(1818).  257.2 

1  Where  one  is  subjected  to  a  lawsuit  for  breach  of  a  contract  made  without  or  beyond 
authority  by  another  in  his  name  and  duly  notifies  the  latter  to  defend  the  action,  the  latter  is 
liable  to  the  former  for  the  expense  of  the  litigation.  See  Hughes  v.  Graeme,  33  L.  J.  R. 
(N.  S.)  Q.  B.  335  ;  White,  Rec'r,  v.  Madison,  26  N.  Y.  117  ;  Collen  v.  Wright,  7  E.  &  B.  301. 
(Ante,  294,  note  1.)  So,  on  the  other  hand,  where  the  principal  refuses  to  defend  a  suit 
brought  against  his  agent,  if  the  agent's  course  in  defending  it  is  a  pnident  and  reasonable 
one,  the  principal  will  be  liable  to  him  for  the  costs  thus  sustained.  Broom  v.  Hall,  7  C.  B. 
(N.  S.)  503. 

2  It  may  not  be  amiss  to  state  summarily,  in  relation  with  this  chapter,  certain  rules  of 
damages  growing  out  of  sales  at  auction,  although  they  in  part  as  properly  belong  elsewhere. 

If  an  auctioneer  sell  real  property  without  sufficient  authority,  so  that  the  purchaser  cannot 
get  a  title,  the  auctioneer  will  be  liable  to  pay  the  purchaser's  expenses  of  investigating  the 
title,  with  interest  on  the  deposit,  and  also  interest  on  the  purchase-money,  if  it  have  been  in 
readiness  and  unproductive.  See  Bratt  v.  Ellis,  C.  B.  M.  &  H.  Terms,  45  Geo.  HI.  cited 
Babington  on  Auctions,  184;  Jones  v.  Dyke,  Cor.  Macdonald,  C.  B.  cited  Ibid. 

Where  goods  sold  at  auction  requiring  to  be  weighed  or  counted  before  delivery,  are  dam- 
aged after  the  s.ale  and  before  delivery  and  before  being  weighed  or  counted,  the  measure  of 
the  vendee's  damages  is  the  actual  damage  without  reference  to  the  price  bid.  Gerard  v. 
Prouty,  34  Barb.  454. 

An  auctioneer  sued  for  the  proceeds  of  goods  intrusted  to  and  sold  by  him  as  such,  cannot 
set  up  title  in  himself  either  as  a  defense  to  the  action  or  in  mitigation  of  damages.  Osgood 
V.  Nichols,  5  Gray,  420. 

It  is  often  an  express  condition  of  sales  at  auction,  both  in  England  and  the  United  States, 
that  in  case  a  purchaser  fails  to  complete  the  purchase,  the  goods  shall  be  resold  and  the  loss 
on  the  resale  made  good  by  him.  In  Alabama,  the  courts  in  acting  on  the  rule  that  the  ven- 
dor's damages  resulting  fi'om  the  purchaser's  foilure,  are  the  loss  actually  sustained  (sec  Girard 
V.  Taggart,  5  S.  «&  R.  19),  imply  such  a  condition  of  the  sale  where  it  is  made  by  offici.al  per- 
sons, such  as  a  sheriff,  school  commissioners,  or  commissioners  appointed  by  a  probate  court, 
and  hold  the  purchaser  liable  for  the  difference  between  the  greater  price  bid  at  the  first  and 


CH.    XII.]  AUCTIONEERS.  393 

the  lesser  obtained  at  the  seeond  sale,  reparditiff  such  difference  in  the  nature  of  "  dainaires 
stipuhited  between  tlie  parties."     Adams  d.  McMillan,  16  Ala.  (().  S.)  7.3  •  School  Coinrn'rl;  ., 

IiMn' sf  ^O.f  ■  ^-^  '''''  ''""'^"  "  '^""'''''  '  ^'"  ^^-  ^-^  ''''  ""«on  .  wXms:35 
So  in  Missouri,  the  excess  of  the  sum  bid  at  an  auction  sale  of  land  over  that  at  a  resale 
althouKii  nut  coiu-lusive,  is  held  to  furnish  a  pood  criterion  of  the  damarres.     Gardner  r  Arm 
strong,  31  Mo.  535.    And  such,  under  ordinary  circumstances,  is  doubtless  the  general  rule 


CHAPTER  XIII. 

THE  MEASURE  OF  DAMAGES  IN  REGARD  TO  COMMON    CARRIERS    UPON   BILLS 
OF  LADING,  AND  ON  CONTRACTS  OF  AFFREIGHTMENT. 

The  Value  of  the  Article  at  the  Place  of  Destination  fixes  the  Measure  of  Dam- 
ages.—  Cases  Examined.  —  Mode  of  arriving  at  the  Value.  —  Rule,  when 
Suit  is  brought  by  Carrier  on  Breach  of  Agreement  to  furnish  Freight. 

The  Law  Measures  the  Damages  in  Actions  against  Carriers, 
EXCEPT  for  Negligent  Injuries  to  the  Person.  —  The  class  of  cases 
which  we  now  proceed  to  consider,  like  those  discussed  in  the 
last  chapter,  cannot  be  made  to  conform  to  the  line  that  separ- 
ates our  forms  of  proceedings ;  as  the  actions  against  common 
carriers  may  be  framed  either  ex  cordractu  upon  the  breach  of 
the  engagement,  or  ex  delicto  upon  the  violation  of  the  public 
duty.  But  we  shall  find  that,  whether  the  action  be  assumpsit 
on  the  contract,  or  case  on  the  violation  of  duty,  the  measure 
of  damages  is  equally  a  question  of  law,  and  as  much  under  the 
control  of  the  court  as  if  the  right  rested  in  agreement 
merely.^  The  liabilities  flowing  from  bills  of  lading,^  which 
are  express  contracts,  and  can  only  be  treated  as  such,  will  also 
be  examined  under  this  head.  In  this  class,  however,  are  by 
no  means  included  those  cases  where  carriers  are  sued  for  in- 
juries to  the  person  resulting  from  negligence.  In  these  no 
recovery  can  be  had,  unless  misconduct  on  the  defendant's  part 
is  proved ;  and  then,  although  there  be  no  express  malice  or 
deliberate  intent  to  injure,  still  the  law,  unable  to  fix  on  any 

1  In  Mississippi,  however,  a  certain  distinction  in  the  rule  of  damages  according  to  the  form 
of  the  action  is  recognized.  Where  the  action  is  in  contract,  the  attorneys'  fees  for  biinging 
the  suit  are  not  recoverable  from  the  carrier,  the  damages  being  then  measured  only  by  the 
value  of  the  lost  property.  New  Orleans,  Jackson  and  Great  Northern  R.  R.  Co.  v.  Moore,  40 
Miss.  39.  But  it  was  intimated  by  the  court  in  the  case  cited,  that  if  the  action  were  in  tort, 
the  attorneys'  fees  might  be  included  in  the  recovery,  on  the  ground  apparently  that  in  the 
latter  form  of  action  such  charges  might  be  considered  and  allowed  by  the  jury  as  exemplary 
damages.  We  have  elsewhere  considered  the  question  of  the  allowance  of  such  expenses  as 
exemplary  damages.  Ante,  98.  For  another  instance  of  the  application  of  this  Mississippi 
rule,  see  Miss.  Central  R.  R.  Co.  v.  Kennedy,  41  Miss.  671. 

2  In  case  of  a  shipment  of  goods  upon  which  fi-cight  has  been  paid  in  advance,  the  usual 
clause  in  the  bill  of  lading  exempting  the  ship-owner  from  loss  by  perils  of  the  sea,  does  not 
conclude  the  shi])]ier  from  recovering  back  the  full  amount  of  the  freiglit  advanced,  when  by 
the  dangers  of  the  sea  the  voyage  has  been  broken  up  and  the  delivery  of  the  goods  prevented. 
Phelps  V.  Williamson,  5  Sandf.  (N.  Y.)  578. 


en.    XIII.]  DAMAGES    FOR    NON-DELIVERY.  395 

preci.se  rule  of  compensation,  surrenders  the  matter  to  the  con- 
trol of  the  jury,  subject  always  to  the  restriction  that  their 
verdict  must  be  free  from  corruption,  prejudice,  or  passion.^ 

Value  at  Place  of  Destination  of  Goods  not  Delivered 
WITH  Interest  the  General  Rule.  —  As  a  general  rule,  where 
goods  are  intrusted  to  a  carrier,  and  they  are  not  delivered 
according  to  the  contract,  the  value  of  the  goods,  with  interest 
thereon  from  the  day  when  they  should  have  been  delivered,  is 
the  measure  of  damages.*^  But  the  question  at  once 
arises,  whether  that  value  is  to  be  computed  at  the  place  [35G] 
where  delivered  to  the  carrier,  or  at  the  place  of  destina- 
tion. We  have  seen  it  said  that,  in  cases  of  illegal  capture  and 
of  collision,  the  actual  damage  sustained  at  the  time  and  place 
of  the  injury  fixes  the  measure  of  damages ;  f  but  in  regard  to 
carriers,  it  seems  to  be  well  settled  that  the  analogy  of  this  rule 
does  not  hold  good,  and  that  the  measure  of  damages  is  the 
value  of  the  goods  at  the  place  of  destination.^  This  sometimes 
involves  an  inquiry  into  foreign  markets,  and  will  generally  in- 

*  Ludwig  V.  Meyre,  5  Watts  &  Sera;.  435  ;         t  Ante,  69,  70,  et  seq. 
Hand  v.  Baynes,  4  Wharton,  204  ;  Segura  v. 
Reed,  3  La.  Ann.  R.  695. 

1  See  Bridgman  v.  The  Steamboat  Emily,  18  Iowa,  509.  As  to  the  liability  of  express 
companies,  see  Hersfield  v.  Adams,  19  Barb.  577. 

■•^  Sherman  v.  Wells,  28  Barb.  403  ;  Hackett  v.  B.  C.  &  M.  Railroad,  35  N.  H.  390  ;  Laurent 
V.  Vaughan,  30  Vt.  (1  Shaw)  90 ;  Worthen  v.  Wilmot,  30  Vt.  (1  Shaw)  555  ;  N.  0.  Jaekson 
and  G't  North  R.  R.  Co.  v.  Moore,  40  Miss.  39,  supra ;  McGregor  v.  Kilgore,  6  Ohio,  358.  The 
same  rule  applies  to  goods  lost  by  an  innkeeper.  Needles  v.  Howard,  1  E.  D.  S.  54.  Com- 
pensation for  the  actual  loss  which  is  the  natural  and  proximate  consequence  of  the  act,  and 
exdhding  speculative  profits  and  remote  or  indirect  losses,  is  the  fundamental  principle  of  the 
rule  of  damages  in  claims  of  this  nature.  Medbury  v  The  N.  Y.  &  Erie  R.  R.  Co.  26  Barb. 
(N.  Y.)  564.  In  an  action  against  a  railroad  company  for  negligence  in  transporting  plaintiff's 
slave,  whereby  he  escaped  from  his  master's  service,  the  jury  are  not  bound,  as  in  cases  where 
property  has  been  destroyed,  to  give  damages  to  the  full  value  of  the  slave.  O'Neall  v.  The 
South  Carolina  Railroad"  Company,  9  Rich.  (S.  C.)  L.  465.  As  to  the  allowance  of  special 
damages  in  actions  of  contract  against  carriers,  see  ante,  76.  Pursuant  to  the  principles 
there  considered,  the  mere  inability  to  fulfill  a  sub-contract  arising  out  of  the  breach  of  the 
contract  on  which  damages  are  claimed,  cannot  be  computed  in  the  damages,  unless  the  de- 
fendant knew  actually  or  constructively  of  the  sub-contract  at  the  time  when  he  entered  into 
his  contract  with  the 'plaintiff.     Caledonian  R.  Co.  v.  Cole,  3  L.  T.  252  (H.  of  L.). 

'*  Spring  V.  Haskell,  4  Allen,  112;  Dean  v.  Vaccaro,  2  Head  (Tenn.),  488;  Louis  v.  Steam- 
boat Buckeve,  1  Handy  (Superior  Court  of  Cincinnati),  150  ;  Gillingham  r.  Uem])sey,  12  S.  & 
R.  183  ;  Wardon  v.  Greer,  6  Watts  (Penn.),  424  ;  Nourse  v.  Snow,  6  Greenl.  208  ;  Sangamon 
&  Morgan  Railroad  Company  v.  Henry,  14  111.  146;  Bailey  w.  Shaw,  4  Fost.  (N.  H.j  297; 
Ringgold  V.  Haven,  1  Cal.  108;  Price  v.  The  Steamship  Uriel,  10  La.  Ann.  412;  Shaw  v. 
The  South  Carolina  Railroad  Company,  5  Rich.  (S.  C.)  L.  462  ;  Nettles  v.  The  Same,  9  Ibid. 
465.  So,  also,  where  by  special  contract  the  carrier  has  undertaken  to  deliver  goods  at  a 
place  beyond  his  own  route,  the  same  rule  will  be  applied.  Perkins  v.  Portland,  Saco,  and 
Portsmouth  R.  R.  Co.  47  Maine  573.  In  Indiana,  this  point  is  left  undecided.  Michigan  S.  «& 
N.  I.  R.  R.  Co.  V.  Caster,  13  Ind.  164.  But  where  the  goods  were  lost  before  the  carrier's  ship  had 
left  port,  the  Superior  Court  of  tiie  city  of  New  York,  after  reviewing  the  cases,  held  that  the 
measure  of  damages  was  their  value  at  that  port,  not  their  value  at  the  port  of  destination, 
less  the  cost  of  transportation.  And  where  such  loss  occurred  without  negligence  on  the  cai'- 
rier's  part,  the  plaintiff  was  held  not  entitled  to  recover  interest  on  the  value  of  the  goods 
even  after  the  suit  was  brought.     Lakeman  v.  Grinnell,  5  Bosw.  625. 


396  COMMON    CARRIERS.  [CH.    XIII. 

elude  the  profits  of  the  adventure ;  but  it  has  been  rightly  held 
that  nothing  less  will  satisfy  the  contract.  It  is  the  value  of 
the  article  at  the  place  of  delivery,  that  the  plaintiff,  relying 
on  the  carrier,  has  lost;  it  is  that  value  which  he  would  have 
received  if  the  contract  had  been  performed.^  If  the  goods 
have  been  transported  by  the  carrier,  he  is  entitled  to  deduct 
his  freight ;  ^  but  if  he  do  not  perform  any  part  of  his  contract, 
then  the  difference  between  the  value  of  the  article  at  the  place 
of  shipment  and  at  the  place  of  delivery,  furnishes  the  measure 
of  damages,  deducting  in  this  case  also  the  freight  or  price  of 
carriage.^  If,  however,  another  conveyance  can  be  found  by 
using  ordinary  care,  the  plaintiff  is  bound  to  do  so ;  and  in  such 
case,  the  measure  of  damages  will  be  merely  the  difference 
between  the  freight  or  price  of  carriage  agreed  on  with  the  de- 
fendant and  the  sum  (if  greater)  which  the  plaintiff  has  been 


1  Van  Winkle  v.  The  U.  S.  M.  Steamship  Co.  37  Barb.  122.  And  if  by  acts  of  the  carrier 
the  plaintiff  is  prevented  from  showing  the  value,  the  jury  may  allow  the  value  of  the  best 
quality  of  such  goods.     Bailey  v.  Shaw,  4  Fost.  (N.  H.)  297. 

2  Atkisson  v.  Steamboat  Castle  Garden,  28  Mo.  (7  Jones)  124  ;  The  Michigan  Southern  & 
N.  L  R.  R.  Co.  V.  Caster,  1.3  Ind.  164  ;  Taylor  v.  Collier,  26  Geo.  122. 

'^  Bridgman  v.  The  Steamboat  Emily,  18  Iowa,  509.  If  there  be  no  market  for  such 
goods,  at  the  place  agreed  for  delivery,  the  Court  of  Queen's  Bench  say  the  jury  must  ascer- 
tain their  value  by  taking  the  price  at  the  place  of  manufacture,  together  with  the  cost  of  car- 
riage, and  allowing  a  reasonable  sum  for  the  importer's  profit.  O'Hanlan  v.  The  Great  West- 
ern R.  R.  Co.  34  L.  J.  R.  (N.  S.)  Q.  B.  I.'i4.  For  the  mode  of  determining  the  market  value 
of  goods,  see  ante,  278,  279. 

It  is  now  generally  the  law  in  the  United  States,  although  it  is  not  so  in  England,  that  the 
receipt  by  a  carrier  of  goods  destined  to  a  place  beyond  the  terminus  of  his  route,  does  not 
in  itself  imply  a  contract  on  his  part  to  carry  them  beyond  such  terminus.  Hood  v.  N.  Y. 
&  N.  H.  R.  R.  22  Conn.  1  ;  Elmore  v.  The  Naugatuck  R.  R.  Co.  23  H)id.  4.57  ;  The  Naugatuck 
R.  R.  Co.  V.  The  Waterbury  Button  Co.  24  Ibid.  468 ;  Hempstead  v.  N.  Y.  Cent.  R.  R.  Co.  28 
Barb.  (N.  Y.)  485  ;  Dillon  v.  N.  Y.  and  Erie  R.  R.  Co.  1  Hilt.  (N.  Y.  C.  P.)  231.  In  such  a 
case  the  destination  of  the  goods  as  regards  the  carrier  on  one  of  the  several  routes  over 
which  they  are  transported  is  the  terminus  of  his  particular  route ;  and  their  value  at  that 
point,  and  not  at  their  ultimate  place  of  consignment,  usually  defines  his  responsibility.  See 
Louis  V.  Steamboat  Buckeye,  1  Handy  (Superior  Court  of  Cincinnati),  150,  supra.  But  cii*- 
cumstances  may  modify  this  rule,  and  in  fixing  the  amount  reference  is  to  be  had  to  the  ulti- 
mate destination  intended  for  the  goods. 

Thus  where  apples  intended  for  the  New  York  market,  which  destination  was  known  to 
the  carrier,  were  to  be  transported  by  the  New  York  Central  Railroad  to  the  intermediate 
town  of  Albany,  which  was  the  terminus  of  the  railroad,  and  there  delivered  to  another  car- 
rier to  be  conveyed  to  New  York,  Albany  was  held  to  be  the  port  of  destination  as  regarded 
the  railroad  company,  and  the  value  there  furnished  the  rule  of  damages  in  an  action  against 
it  for  injury  to  the  apples  by  freezing  while  in  its  charge.  But  proof  of  their  value  in  New 
York  was  held  admissible,  the  court  considering  that  the  value  in  that  city,  deducting  the 
freight  thither  from  Albany,  would  be  a  proper  rule  of  damages.  Marshall  v.  N.  Y.  Cent.  R. 
R.  Co.  45  Barb.  502.  See  also,  Harris  v.  Panama  R.  R.  Co.  5  Bosw.  312.  "  In  estimating 
the  damages  in  cases  where  the  article  to  be  transported  cannot  be  purchased  at  the  place  of 
destination,  and  the  carrier  who  has  contracted  to  carry  it  has  the  exclusive  right  of  trans- 
portation by  the  cheapest  mode,"  say  the  Supreme  Court  of  Georgia,  "  the  difference  between 
the  price  agreed  on,  or  usual  by  that  mode,  and  the  terms  on  which  others  would  carry  it  by 
other  modes  of  transportation,  ought  to  be  considered,  and  in  this  case  and  all  like  it,  it  might 
not  be  improper  to  admit  additionally  evidence  of  losses  by  the  expense  of  hands,  etc.,  during 
a  necfissary  suspension  of  business  occasioned  by  the  default  of  the  carrier  for  a  period  during 
which  the  plaintiff  by  ordinary  diligence  could  not  supply  himself  by  other  means  with  the 
article  agreed  to  be  carried."     Cooper  v.  Young,  22  Geo.  269. 


en.    XIII.]  DAMAGES    FOR    NON-DELIVERY.  397 

obliged  to  pay  others.^     We  shall  best  understand  the  applica- 
tion of  these  rules  by  an  examination  of  the  adjudged  cases.^ 

In  an  action  of  assumpsit*  against  the  defendants,  as  ship- 
owners, for  not  delivering  a  cargo  of  wheat  consigned  to  the 
plaintiffs,  the  cargo  reached  the  port  of  discharge,  but  was  not 
delivered,  and  the  price  of  the  cargo  at  the  time  it  reached 
its  port  of  destination  was  held  to  be  the  true  rule  of  dam- 
ages. "As  between  the  parties  in  this  cause,"  said  Parke,  J., 
"  the  plaintifts  are  entitled  to  be  put  in  the  same  situation  as 
they  would  have  been  if  the  cargo  had  been  delivered  to  their 
order  at  the  time  when  it  was  delivered  to  the  wrong  party  ; 
and  the  sum  it  would  have  fetched  at  that  time  is  the 
amount  of  the  loss  sustained  by  non-performance  of  the  [357] 
defendant's  contract."  In  New  York,  the  same  rule  has 
been  laid  down  in  an  action  against  the  master  of  a  vessel, 
where  the  goods  had  been  embezzled  on  the  voyage  without 
fraud  on  the  part  of  the  defendant ;  t  and  this  language  w^as 
held  as  to  interest :  "  The  question  of  interest  depends  on  cir- 
cumstances. The  jury  may  give  interest  by  way  of  damages, 
in  cases  in  which  the  conduct  of  the  master  was  improper.  But 
here  no  bad  conduct  is  to  be  imputed  to  him,  and  interest  is 

*  Brandt  y.  Bowlby,  2  Barn.  &  Adol.  932.       also,    Smith  v.    Richardson,    3    Caines,   219. 
t  Watkinson  v.  Laughton,  8  J.  R.  213.  See     See  also,  Elliott  v.  Rosscll,  10  J.  R.  1. 

1  Where  the  carrier's  default  consists  in  delaying  the  delivery  of  the  goods  till  after  the  time 
stipulated  by  the  contract,  or  in  the  absence  of  a  stipulation  as  to  time,  in  delaying  it  unreason- 
ably, the  rule  of  damages  is  considered,  post,  359,  note  3. 

-  In  an  action  upon  a  contract  of  atireightment,  which  has  been  violated,  the  measure  of 
damages  is  the  value  of  the  property  at  the  place  of  shipment,  with  interest  from  that  time, 
unless  there  be  other  damages  connected  with  and  proximate  to  the  contract.  Jackson  v.  The 
Julia  Smith,  6  McLean's  C.  C.  R.  484.  See  also,  on  this  subject,  Jackson  v.  The  Julia  Smith, 
1  Newb.  Adm.  R.  61 ;  Sanquer  v.  The  London  &c.  Railway  Company,  32  Eng.  L.  &  E.  338. 
Where  a  carrier  having  instructions  to  deliver  cotton  at  Norfolk  to  a  factor  who  had  been  di- 
rected to  hold  it  until  further  orders,  delivered  it  instead  to  a  factor  at  Petersburg,  who  hav- 
ing no  instructions  about  it  sold  it  immediately,  and  cotton  rose  rapidly  and  steadily  after  the 
sale,  the  court  applied  the  rule  of  damages  that  governs  the  case  of  factors  who  sell  their  prin- 
cipals' goods  without  authority,  and  held  the  carrier  liable  for  the  highest  price  the  goods  would 
have  realized  at  any  time  before  the  suit  was  brought,  that  having  been  done  with  reasonable 
diligence.  Arrington  v.  Wilmington  and  VVeldon  R.  R.  Co.  6  Jones  (N.  C.)  Law,  68.  Where 
goods  are  injured  on  shipboard,  the  measure  of  damages  is  the  difference  between  their  value 
in  their  damaged  state  at  the  port  of  destination  and  what  it  would  have  been  there  if  they  had 
been  delivered  in  good  order.  Such  actual  value  should  be  ascertained  by  a  public  sale  to  the 
highest  bidder.  Henderson  v.  Ship  Maid  of  Orleans,  12  La.  Ann.  352.  See  Black  v.  Camden 
and  Ainboy  R.  R.  45  Barb.  (N.  Y.)  40.  In  such  an  action  it  is  in  the  discretion  of  the  jury  to 
allow  interest,  but  it  is  error  to  instruct  them  to  do  so.  Ibid.  So  where  goods  were  thus  dam- 
aged during  transportation,  and  were  received  by  consignees  upon  an  understanding  that  the 
depreciation  was  to  be  made  good  to  them,  and  they  were  sold  at  auction  by  the  consignees, 
but  with  the  assent  of  the  master;  Held,  that  for  the  purpose  of  making  ailjustment  of  the 
amount  due  from  the  vessel  for  the  injury,  the  sum  realized  at  the  sale  should  be  regarded 
as  the  value  of  the  goods  in  their  danuiged  state.  The  Columbus,  1  Abbott's  Adm.  R.  97. 
Compare  Jellinghaus  v.  The  New  York  Insurance  Company,  4  Sandf.  (N.  Y.)  18.  Factors' 
charges  cannot  be  allowed.  Kyle  v.  The  Laurens  Railroad  Company,  10  Rich.  (S.  C.)  L.  382. 
The  carrier  in  an  action  against  him  for  injuries  to  the  goods  through  his  negligence,  is  not  enti- 
tled to  a  deduction  for  so  much  of  the  loss  as  is  covered  by  insurance.  Merrick  v.  Brainard, 
33  Barb.  (N.  Y.)  574. 


398  COMMON    CARRIERS.  [CH.    XIII. 

not  in  every  case  and  of  course  recoverable,  because  the  amount 
of  the  loss  is  unliquidated,  and  sounds  in  damages  to  be  assessed 
by  the  jury."  ^ 

So  in  another  case,*  where  suit  was  brought  on  an  agreement 
to  carry  a  quantity  of  salt  from  Oswego  to  Queenston,  the  dif- 
ference in  value  of  the  article  at  Oswego  and  at  Queenston  at 
the  time,  was  held  the  true  rule  of  damages.  And  the  same 
rule,  with  the  same  modification  as  to  interest,  was  again  laid 
down  by  the  same  court.! 

In  Pennsylvania,t  the  doctrine  of  the  State  of  New  York  has 
been  affirmed.  It  was  an  action  on  the  case,  brought  to  re- 
cover damages  of  the  defendant  for  refusing  to  transport  wheat 
from  Pittsburg  to  Philadelphia,  according  to  contract.  The 
transportation  was  prevented  by  the  approaching  freezing  of 
the  canal.  The  defendant  contended  that  the  measure  of  dam- 
ages was  the  difference  between  the  price  agreed  on  for  the 
freight,  and  that  for  which  their  carriage  might  have 
[358]  been  obtained  by  others;  and  the  court  said  that  this 
would  be  the  rule,  if  the  plaintiff  could  have  obtained  an- 
other conveyance.^     "  The  plaintiff  would  have  no  right,  by  his 

*  Bracket  v.  M'Nair,  14  J.  R.  170.  defendant,  and  that  the  case  showed  only  a 

t  Amory   v.  M'Gregor,    15  J.  R.  24.     See  breach  of  the  implied  warranty  of  seaworthi- 

also,  Edminson  v.  Baxter,  4  Hayw.  114.    The  ness. 

Superior  Court  of  New  York,  in  Wheelwright  The  previous  cases,  as  we  have  seen,  do  not 

v.  Beers,  2  Hall,  391,  against  the  dissenting  go  on  the  ground  oi  fault  or  fraud ;  they  turn 

opinion  of  Oakley,  J.,  adopted  a  different  rule,  simply  on  the  breach  of  contract,  and  it  would 

It  was   an   action    of  covenant  on  a  charter  seem  that  the  rule  should  be  the  same,  whether 

party,  by  which  the  defendant  had  stipulated  the  defendant  agrees  to  transport  the  goods  to 

that  the  Champion  should  perform  a  voyage  their  place  of  destination,  or   that  his   ship 

from  New  York  to  Omoa  and  back.  shall  do  it. 

The   vessel   proved  unseaworthy,  put  into  An  early  case.  Smith  et  al.  v.  Richardson,  3 

Norfolk,   where  the  voyage  was    broken   up,  Caines'  N.  Y.  T.  R.  219,  turned  on  a  ((uestion 

and  the  plaintiff's  cargo  sold.     It  was  held  slightly    different ;   but   it   seems   imperfectly 

that  the  loss  on  the  goods  (taking  them  at  their  reported,  and  it  is  only  necessary  here  to  refer 

invoice  price)  resulting  from  the  sale,  was  the  to  it. 

true   rule   of  damages,   on    the   ground   that  t  O'Conner  v.  Foster,  10  Watts,  418. 
there  was  no  fault  or  fraud  on  the  jjart  of  the 

1  A  vessel  having  on  board  a  cargo  of  flour  for  transportation,  capsized  at  her  wharf  before 
sailing,  and  the  cargo  was  much  damaged.  The  carriers  might  easily  have  communicated  with 
the  owners  of  the  cargo,  and  sought  instructions  as  to  the  disposal  of  it ;  but  they  neglected  to 
do  so,  and  sold  the  cargo  upon  their  own  authority,  at  auction  ;  after  which  the  vessel  sailed, 
and  in  due  time  arrived  at  the  port  of  delivery.  Held,  1.  That  the  owners  of  the  cargo  were  en- 
titled to  recover  the  value  of  the  cargo  at  the  port  of  delivery,  deducting  freight  and  charges,  and 
interest  on  the  balance.  2.  That  the  value  of  the  cargo  should  be  computed  by  the  market  price 
at  the  port  of  delivery,  at  the  time  of  the  arrival  of  the  vessel,  it  appearing  that,  except  for 
the  accident,  the  cargo  would  at  that  time,  in  the  ordinary  course  of  things,  have  been  delivered; 
with  a  privilege,  however,  to  the  owner  to  claim  the  amount  realized  upon  the  sale  of  the 
goods  at  auction.  The  Joshua  Barker,  1  Abbott's  Admr.  R.  215.  See  also.  The  Gold  Hunter, 
1  Blatchf  &  H.  300,  where  the  value  of  the  goods  at  the  port  of  destination,  at  the  time  when 
the  goods  should  have  been  delivered,  with  interest,  but  allowing  the  carrier's  charges,  was  held 
to  be  the  measure  of  damages. 

2  In  an  action  for  the  refusal  by  the  defendant  to  perform  an  agreement  to  transport  corn  in 
his  ship,  at  a  certain  price,  the  plaintiff  is  entitled  to  recover  for  his  damages  the  difference  be- 
tween the  contract  price  and  what  he  would  be  compelled  to  pay  for  the  same  service.  And 
when  a  refusal  to  perform  on  the  part  of  a  contractor  is  shown,  and  it  is  proved  that  the  price 


CH.  XIII.]  MODE    OF    ESTIMATING    VALUE.  399 

own  ne<^Iigence  or  want  of  care,  to  incur  a  voluntary  loss  for 
the  purpose  of  imposing  it  on  the  defendant  as  a  penalty  for 
the  breach  of  contract.  If,  as  is  usually  the  case  here,  another 
conveyance  could  have  been  obtained  for  this  wheat  before  the 
canal  froze  up,  by  a  little  extra  expense  and  the  delay  of  a  day 
or  two,  he  would  have  no  right  to  claim  greater  damages  than 
would  have  been  incurred  by  such  extra  expenses  and  delay." 
But  the  defendant  offering  no  such  proof,  the  true  rule  of  dam- 
ages was  held  to  be,  the  difference  between  the  value  of  the 
wheat  in  Pittsburg,  with  the  freight  added,  and  the  market 
price  at  Philadelphia,  at  the  time  it  would  have  arrived  there 
if  carried  according  to  the  contract.^ 

In  a  case  on  the  Massachusetts  circuit,*  where  a  libel  was 
filed  in  admiralty  against  vessel  and  master  for  not  delivering 
a  cargo  at  Velasco,  the  vessel  arrived  out,  and  the  consignee 
refusing  to  receive  it,  the  master,  contrary  to  his  duty,  carried 
it  on  to  New  Orleans.  It  was  held  that  the  libelants  were  en- 
titled to  recover  the  actual  value  at  Velasco  at  the  time  when 
the  cargo  should  have  been  landed  there,  deducting  all  duties 
and  charges,  and  the  freight  for  the  voyage,  as  if  the  cargo  had 
been  duly  landed ;  and  Mr.  Justice  Story  said,  that  the  rule 
adopted  in  prize  cases,  of  an  addition  of  ten  per  cent,  to  the 
price  cost  of  the  cargo,  did  not  apply  to  cases  like  the  present ; 
that  rule  ordinarily  supposing  that  the  vessel  has  been  captured 
before  she  arrived  at  the  port  of  destination,  and  the  court 
making  the  presumption  of  the  additional  value  of  ten  per  cent, 
in  odium  spoliatoris? 

In  Massachusetts  it  was  agreed  by  bill  of  lading,  that  [359] 
the  net  proceeds  of  the  cargo  at  the  port  of  destination 
should  be  paid  to  the  shippers  in  ninety  days  after  the  return 

*  Arthur  e^  d.  v.  The  Schr.  Cassius,  2  Story,  81. 

of  transportation  had  risen  before  the  time  the  ship  sailed,  the  plaintiff  is  entitled  to  his  dam- 
ages, measured  bv  the  rise  in  the  price,  without  proving  that  he  had  the  corn  ready  to  ship. 
Ogden  V.  Marshall,  4  Seld.  (8  N.  Y.)  340. 

^  See  the  principle  of  O'Conner  v.  Foster,  reaffirmed  by  McGoveni  v.  Lewis,  56  Penn.  231. 
The  master  of  a  vessel  having  contracted  for  the  transportation  of  a  cargo,  the  performance 
of  the  contract  was  interrupted  while  the  lading  of  the  cargo  on  board  was  going  on,  by 
the  death  of  the  master,  and  afterwards  by  the  freezing  up  of  the  vessel.  The  owner  rejmdi- 
ated  the  contract,  and  refused  either  to  take  on  board  the  residue  of  the  cargo,  or  to  deliver 
up  that  already  laden.  Held,  1.  That  the  shipper  could  recover  damages  for  the  value  of  the 
brick  laden  on  board  and  withheld  ;  for  the  cost  of  transporting  the  residue  from  his  store- 
house to  the  dock  ;  for  any  injuries  received  by  them  while  they  lay  there  awaiting  accept- 
ance by  the  owner  of  the  vessel ;  and  for  the  ditfcrence  in  the  shipper's  disfavor,  if  any,  be- 
tween the  contract  price  of  transportation,  and  his  actual  expenses  incun-ed  in  obtaining 
another  mode  of  conveyance.  2.  That  he  could  not  recover  against  the  vessel  for  injuries  re- 
ceived by  the  property  after  notice  of  the  owner's  refusal  to  complete  the  contract,  but  that  the 
vessel  was  chargeable  with  the  cost  of  transporting  the  portion  of  cargo  left  behind,  to  its  place 
of  destination.     The  Flash,  1  Abbott's  Adm.  R.  119. 

2  See  the  Gold  Hunter,  1  Blatchf  &  H.  300. 


400  '  COMMON    CARRIERS.  [CH.    XIII. 

of  the  vessel  to  her  home  port ;  the  ship  having  arrived  out, 
the  goods  were  sold,  and  the  proceeds  invested  by  the  owners 
of  the  ship  on  their  own  account,  in  return  cargo ;  the  ship  met 
with  disaster  and  injured  her  cargo  50  per  cent.,  but  arrived  at 
her  home  port ;  and  it  was  held  that  the  shippers  were  entitled 
to  recover  the  whole  net  amount  for  which  the  adventure  was 
sold  in  the  foreign  port.* 

In  the  same  State,  it  has  been  intimated  that  where  a  pack- 
age is  delivered  to  a  common  carrier,  whose  liability  is  unlim- 
ited by  notice,  though  the  party  delivering  is  not  obliged  to 
state  its  value  unless  inquiry  is  made,  yet  if  on  inquiry  a  false 
answer  be  given  or  any  concealment  or  deception  be  practiced, 
the  carrier  will  not  be  held  responsible  for  the  subsequent  acci- 
dent.!^ 

Carrier's  Delay.  —  Where  the  plaintiff  complained  not  of 
non-delivery,  but  of  delay  of  arrival,^  and  in  consequence  of  the 
delay  it  became  necessary  to  remove  the  goods  to  another 
place  to  sell  them,  it  was  considered  that  the  expenses  of  such 
removal  were  rightly  recoverable ;  but  the  question  of  such 
necessity  is  of  course  for  the  jury.$  ^ 

*  Wallis  V.  Cook,  10  Mass.  510;  Winches-  t  Dwight  v.  Brewster,  1  Pick.  50;  Phillips 
ter  V.  Patterson,  17  Mass.  62.  v.  Earle,  8  Pick.  182. 

J  Black  V.  Baxendale,  1  Exch.  Rep.  410. 

1  This  rule  is  well  established.  And  even  if  no  inquiry  be  made  by  the  carrier,  nor  false 
statement  by  the  other  i)arty,  yet  if  the  carrier  be  reasonably  deceived  as  to  the  nature  and 
value  of  the  parcel,  as  where  valuable  merchandise  intended  for  sale  is  contained  in  a  trunk  de- 
livered to  him  as  the  luggage  of  a  traveller,  he  will  be  exonerated.  Richards  v.  Westcott,  2 
Bosw.  589. 

^  A  word  may  be  said  here  as  to  the  converse  question  of  the  liability  of  the  freighter,  or 
consignee,  for  damages  for  delay  of  the  vessel  while  unlading.  Demurrage  in  the  strict 
sense  of  the  term  means  a  sum  of  money  due  by  express  contract  for  the  detention  of  a  ves- 
sel in  loading  one  or  more  days  beyond  the  time  allowed  for  that  pxirpose  in  the  charter- 
party.  It  seems  that  the  consignee  cannot  be  made  liable  for  demurrage,  where  there  is  in  the 
charter-party,  or  bill  of  lading,  no  express  agreement  or  stipulation  in  respect  to  it,  or  in 
respect  to  lay  days.  But  the  freighter  is  liable  to  the  vessel  for  any  unnecessary  detention  in 
loading  or  unloading,  although  no  express  contract  is  made  on  the  subject ;  and  compensation 
for  such  detention  may  be  recovered  under  the  name  of  demurrage.  Sprague  v.  West,  1 
Abbott's  Adm.  R.  548.  It  was  said,  however,  in  a  case  in  the  New  York  Supreme  Court,  that 
although  there  has  been  no  special  agreement  between  a  shipper  of  goods  and  the  master  of 
a  vessel,  for  demurrage,  yet  if  the  vessel  is  improperly  detained  an  unreasonable  length  of 
time  by  the  freighter  or  consignee,  the  owner  of  the  vessel  may  recover  damages,  in  the  nature 
of  demurrage,  for  such  detention.  That  was,  however,  an  action  against  the  freighter.  The 
damages  in  these  cases  should  he  limited  to  compensation  for  the  time  the  vessel  was  actually 
detained  by  the  consignee  beyond  a  reasonable  time  for  the  discharge  of  her  cargo.  Clendaniel 
V.  Tuckerman,  17  Barb.  184.  See  Wordin  v.  Bemis,  32  Conn.  268.  Such  damages  are  meas- 
ured by  the  day,  like  demurrage.     Ibid. 

3  But,  pursuant  to  the  rule  in  Hadley  v.  Baxendale  (9  Exch.  341),  the  hotel  expenses  of  a 
traveller  waiting  for  a  paixel  delayed  by  a  carrier  who  was  not  informed  of  the  purpose  for 
which  it  was  intended,  were  lately  held  too  remote.  Woodger  v.  The  Great  Western  R.  Co.  2 
LawR.  (C.  P.)  318. 

The  extent  of  a  carrier's  liability  for  delay  in  the  transportation  or  delivery  of  goods 
has  been  a  subject  of  much  recent  discussion.  Where  there  is  no  injury  to  the  goods,  and 
they  are  offered  to  the  owner  after  the  time  when,  by  his  express  or  implied  contract,  it  was 


CH.  XIII.]  carrier's  delay.  401 

Mode  of  Estimating  Value.  —  We  have  next  to  inquire    in 
regard  to  tlie  mode  in  which  the  value  of  the  article  shall  be 

the  earner's  duty  to  deliver  them,  the  owner  is  not  entitled  to  refuse  to  receive  them  with  the 
view  of  holdiu^^  tlii;  rarricr  for  their  full  value.  If  he  d(jcs  so  he  can  recover,  in  the  uhsence  of 
special  circumstances,  au  iuilcmiiity  only  for  his  actual  loss.  Scoville  v.  Griffith,  lii  N.  Y.  509. 
The  measure  of  the  ilama^cs  is  the  loss  from  the  delay,  not  the  value  of  the  floods  (Bri;^gs 
V.  New  York  Cent.  K.  R.  Co.  2!>  IJarh.  51.'>),  provided  they  are  not  substantially  clian.i:cd  in 
character,  hut  remain  rit  for  all  ordimxry  uses  of  such  ])roperty.  Ilackett  v.  IJ.  C  &  M.  R. 
K.  35  \.  H.  390.  The  carrier  cannot  be  holden  for  time,  nor  for  expenses,  if  they  are  not 
the  natural  and  necessary  consequence  of  the  delay.  Benson  v.  The  New  Jersey  Railway  and 
Transjwrtation  Co.  9  Busw.  (N.  Y.)  412.  In  Illinois,  in  an  action  against  a  carrier  for  delay 
in  delivering  machinery,  the  measure  of  damages  was  held  to  be  the  value  of  the  use  of  the 
machinery  during  the  period  of  impro])er  detention.  Priestly  v.  Northern  Indiana  and  Chicago 
Railroad  Company,  26  111.  205.  In  this  case  it  did  nut  appear  that  the  carrier  was  notitied 
of  the  purpose  for  which  the  machinery  was  designed,  so  as  to  bring  the  case  within  the 
second  branch  of  the  rule  in  Iladley  y.  Baxendale  (9  Exch.  341).  The  value  of  the  use  was 
allowed  as  a  natural  aiul  direct  result  of  the  breach.  Ante,  76,  note.  In  a  somewhat  early 
case,  where  in  consc(juence  of  the  carrier's  unreasonable  delay  in  the  delivery  of  an  account 
of  the  ])laintiff  against  a  third  party,  it  was  barred  by  the  statute  of  limitations,  he  was  held 
liable  for  the  amuuut.  Favor  v.  Philbrick,  5  N.  11.  357.  The  sum  involved  in  this  case  was 
small,  and  the  decision  would  seem  to  have  gone  on  the  right  rather  than  the  measure  of 
recovery.  To  make  it,  as  regards  the  latter  point,  conform  to  the  law  as  now  established,  the 
carrier  should  have  had  notice  beforehand  of  the  particular  necessity  for  punctual  delivery  ; 
and  we  think,  also,  it  should  have  appeared,  if  the  point  were  controverted,  that  the  debt  would 
have  been  collectable,  but  for  the  statute.  On  this  question  there  appears  to  have  been  no  evi- 
dence. 

In  Davis  v.  Cincinnati,  Hamilton  &  Dayton  R.  R.  Co.  1  Disney's  Reports  of  the  Superior 
Court  of  Cincinnati,  23,  the  defendant  had  failed  to  deliver  in  a  reasonable  time  a  boiler  con- 
structed for  a  steam  saw-mill.  The  court  held  that  the  measure  of  damages  would  be  compen- 
sation for  the  actual  expense  incurred,  the  time  consumed,  and  trouble  taken  in  travelling  to 
ascertain  what  had  become  of  the  boiler,  also  the  expense  incurred  in  preparations  for  connect- 
ing the  boiler  with  the  fixtures  and  machinery  of  the  saw-mill,  with  interest  on  the  value  of  the 
property  during  the  time  of  the  detention. 

In  a  late  ease  in  the  Court  of  Queen's  Bench,  where  some  regalia  which  were  to  be  used  in 
a  procession  by  the  plaintiff,  and  which  he  had  hired  at  an  expense  of  £20,  were  not  deliv- 
ereil  by  the  carrier  in  time  for  the  procession,  and  the  plaintiff  was  at  au  expense  of  £5  in 
looking  for  the  goods,  he  was  held  entitled  to  recover  the  latter  item,  on  account  of  unreasona- 
ble delay,  but  not  the  former,  which  was  too  remote,  the  carrier  having  had  no  notice  of  the 
object  fur  which  the  goods  were  to  be  used.  Lord  Cockburn,  C.  J.,  said:  "  It  is  a  reasonable 
doctrine  not  to  make  a  carrier  liable  for  damage  sustained  in  conse(|uence  of  goods  not  arriv- 
ing ill  time,  unless  he  had  notice  that  time  was  of  importance  ;  but  the  person  who  sends  his 
goods  is  entitled  to  expect  that  they  shall  be  sent  from  place  to  i:)lace  in  a  reasonable  time." 
Hales  V.  London  &  Northwestern  R.  Co.  4  B.  &  S.  66. 

But  where  from  the  carrier's  inexcusable  delay,  peas  shipped  from  Canada  to  New  Y'ork, 
were  stopped  on  the  way  by  the  freezing  of  the  lakes,  and  would  have  been  detained  through 
the  season,  and  on  the  carrier  refusing  to  carry  them  to  New  York  by  rail,  or  deliver  them  to 
the  plaintiff  except  on  payment  of  freight,  the  plaintiff  replevied  them  and  sent  them  to  the 
Boston  market,  which  was  a  judicious  course,  he  was  held  entitled  to  recover  the  difference 
between  the  net  proceeds  of  their  sale  at  Boston  and  their  market  value  at  New  York  at  the 
time  when  they  should  have  been  delivered.     Laurent  c.  Vaughan,  30  Vt.  (1  Shaw)  90. 

The  damages  from  the  delay  often  consist  in  the  loss  of  profits,  which  also  is  fi-equently  an 
item  in  other  claims  against  the  carrier.  As  regards  his  liability  for  this  loss  on  the  ground 
that  at  the  time  when  he  received  the  goods  or  agreed  to  carry  them  it  was  or  readily  might 
have  been  foreseen  by  him  as  a  necessary  or  probable  result  of  his  breach  of  contract,  the  ques- 
tion has  been  considered.  Ante,  76.  And  the  general  question  of  profits  is  discussed  else- 
where (71,  et  seq).  But  the  examination  of  the  mode  of  determining  the  damages  in  this  class 
of  actions  would  be  incomidete  without  referring  to  some  of  the  principal  cases  where  the  loss 
of  profits  is  claimed  as  a  direct  consequence  of  the  carrier's  default. 

In  the  case  of  Collard  v.  The  Southeastern  Railway  C'umpanv,  7  H.  &  N.  79  (30  L.  J.  R. 
(N.  S.)  Exch.  393) ;  4  L.  T.  R.  (N.  S.)  410,  in  an  actiun  against  the  carrier  for  a  delay  in  the 
delivery  of  hops  intended  for  sale,  and  a  further  delay  necessary  for  the  purpose  of  restoring 
to  a  marketable  condition  a  portion  of  them  which  had  been  damaged  while  in  his  custody,  it 
was  held  that  the  plaintiff  was  entitled  to  recover  the  difference  between  the  market  value  of 
the  hops  on  the  day  when  they  were,  and  that  on  the  day  when  they  should  have  been  delivered, 
although  the  defendants  had  no  notice  that  they  were  intended  for  sale  and  not  for  use.  The 
decision  was  placed  on  the  ground  that  the  plaintiff's  loss  from  the  depreciation  in  market 
26 


402  COMMON    CARRIERS.  [CH.    XHI. 

arrived  at.  In  New  York,*  where  case  was  brought  against  a 
carrier  for  delay  in  forwarding  Alpine  mulberry-trees,  in  conse- 

*  Smith  V.  Griffith,  3  Hill,  333.1 

value  was  the  direct  consequence  of  the  carrier's  default ;  and  the  case  was  distinguished  from 
Smeed  v.  Foord,  1  Ellis  &  Ellis,  602  (cited  ante,  76,  note  1),  because  the  damage  was  in  the  lat- 
ter case  consequential  merely. 

Again,  in  an  action  by  a  cap  manufacturer  for  damages  for  the  loss  sustained  by  delay  in  the 
delivery  of  cloth  by  which  the  plaintiff  had  lost  the  season  for  making  it  into  caps,  it  was  held 
by  the  English  Court  of  Common  Pleas,  that  although  the  loss  of  profits  could  not  be  taken 
into  account  within  the  rule  of  Hadley  v.  Baxendale,  yet  the  loss  in  the  market  value  of  the 
goods  was  a  proper  clement  of  damages.  Wilson  v.  The  Lancashire  &  Yorkshire  Railway  Co. 
30  L.  J.  C.  P.  (N.  S.)  232. 

This  case  again  can  be  reconciled  with  Smeed  v.  Poord  only  by  relying  on  the  distinction  be- 
tween direct  and  consequential  damages  referred  to  by  the  court  in  Collard  v.  The  Southeastern 
R.  Co.,  a  distinction  which  is  generally  important  in  fixing  the  damages  in  this  class  of  cases. 
The  two  cannot  be  harmonized  on  the  principle  of  the  second  branch  of  the  rule  in  Hadley  v. 
Baxendale,  especially  as  in  Smeed  v.  Poord  it  was  known  to  the  defendant  that  the  machine 
was  designed  for  the  immediate  threshing  of  wheat  which,  whether  intended  for  sale  or  not, 
must  have  had  a  market  value ;  and  in  the  present  case,  as  would  appear,  the  carrier  was  igno- 
rant of  the  purpose  for  which  the  cloth  was  intended.  Nor  do  there  ajipear  to  have  been  any 
circumstances  known  to  the  carrier  affecting  or  liable  to  affect  the  market  value.  The  learned 
justices  in  this  case  concurred  in  placing  the  loss  in  the  market  value  of  the  goods  on  the  same 
ground  with  their  intrinsic  deterioration.  See  Davis  v.  Northwestern  R.  Co.  4  Janst.  (N.  S.) 
1303. 

So  in  the  case  of  Wilson  v.  The  York,  Newcastle  &  Berwick  R.  Co.  18  Eng.  L.  &  E.  557 
(note),  it  was  held  by  Jervis,  C.  J.,  at  Nisi  Priiis,  that  a  carrier  undertaking  to  carry  fish  to  a 
particular  market  in  time  for  the  morning's  sale,  was  liable  for  the  profit  lost  by  his  failure  to 
get  them  there  in  time  for  that  sale.  This  case,  however,  which  preceded  Hadley  v.  Baxen- 
dale, is  also  justified  by  the  second  head  of  the  rule  adopted  in  that  case. 

In  the  United  States  the  same  point  has  been  considered,  but  the  decisions  are  not  as  yet 
entirely  uniform.  In  Wisconsin,  in  an  action  for  the  carrier's  delay  in  the  delivery  of  flour, 
the  measui-e  of  damages  was  the  difference  between  the  price  of  the  flour  when  it  should  have 
arrived  and  when  it  did  arrive,  if  it  was  then  sold  for  the  depreciated  price.  Peet  v.  Chicago 
&  Northwestern  R.  R.  Co.  20  Wis.  594.  In  Massachusetts  it  is  held  that  the  measure  of  dam- 
ages is  not  the  profits  lost  (Waite  v.  Gilbert,  10  Cush.  177),  but  the  diminution  in  the  market 
value  of  the  goods  at  the  place  of  delivery  occasioned  by  the  carrier's  delay.  Ingledew  v. 
Northern  R.  R.  Co.  7  Gray  (Mass.),  86.  And  the  same  rule  there  applies  where  the  subject  of 
conveyance  is  live  animals.  Smith  v.  New  Haven  &  Northampton  R.  Co.  12  Allen,  531.  In 
Maine  the  same  rule  is  adopted  as  to  conveyance  of  goods.  Weston  v.  G.  T.  Railway  Co. 
54  Me.  376.  So  in  Vermont,  a  carrier  engaging  to  transport  live  stock  to  market  by  the  follow- 
ing market  day  and  failing  to  do  so,  is  liable  for  the  difference  between  what  the  stock  was 
necessarily  sold  for,  and  what  it  would  have  brought  on  market  day.  King  v.  Woodbridge,  34 
Vt.  565.  So  in  Minnesota.  Whalon  v.  Aldrich,  8  Minn.  346.  And  where  the  carrier  under- 
took to  deliver  logs  at  a  certain  point  during  a  certain  season,  what  it  would  have  cost  to  drive 
down  the  logs  after  the  season  had  passed  was  held  immaterial.  Ibid.  In  Georgia,  where  a 
manufacturer's  business  was  suspended  in  consequence  of  delay  in  the  arrival  of  coal  through 
the  carrier's  default,  evidence  of  the  amount  of  profit  which  might  have  been  realized  but 
for  the  delay,  is  not  admissible.  Cooper  v.  Young,  22  Geo.  269  (ante,  356,  note  3).  So  in  Ohio, 
profits  lost  from  the  delay  in  delivering  a  boiler  intended  for  a  saw-mill  were  disallowed.  Davis 
V.  Cincinnati,  Hamilton,  &  Dayton  R.  Co.  1  Disney  23  (supra).  In  the  case  of  Wibert  v.  The 
New  York  &  Erie  Railroad  Co.  19  Barb.  (N.  Y.)  36,  it  was  held  by  the  Supreme  Court  of  New 
York,  in  the  eighth  judicial  district,  that  the  plaintiff  could  not  recover  as  damages  from  the  car- 
rier the  difference  between  the  price  of  butter  at  the  time  when  it  should  have  been,  and  at  that 
when  it  was  in  fact  delivered.  The  case  was  affirmed  by  the  Court  of  Appeals  on  another 
grovmd,  and  without  passing  on  the  point.  But  the  same  court,  in  the  seventh  judicial  district, 
held  that  a  loss  by  fall  in  the  market  sustained  by  the  plaintiff  in  the  same  way,  was  a  proper 
element  of  the  damages.  Kent  v.  The  Hudson  River  Railroad  Co.  22  Barb.  (N.  Y.)  278. 
Still  later,  however,  the  same  court  in  the  former  district,  after  a  review  of  the  two  cases  last 
cited,  reaffirmed  the  conclusions  of  Wibert  v.  The  New  York  &  Erie  R.  Co.,  and  dissented 
from  those  of  Kent  v.  The  Hudson  River  R.  R.  Co.  Jones  v.  The  New  York  &  Erie  R.  R.  Co. 
29  Barb.  633. 

The  same  question  was  considered  by  the  Supreme  Court  of  Michigan,  in  the  case  of  Sisson 

1  The  case  of  Smith  v.  Griffith,  3  Hill,  333,  was  approved  in  Kent  v.  The  Hudson  Kiver 
Railroad  Company,  22  Barb.  (N.  Y.)  278. 


CH.  XIII.]  carrier's  delay.  403 

quence  of  which  a  portion  were  destroyed,  the  plaintiff  daimed 
as  his  damages  the  market  value  of  the  trees  —  four  sliillino;s 
each.  The  defendant's  counsel  offered  to  prove  that,  from  sub- 
sequent experiments,  this  kind  of.  tree  had  been  ascertained  to 
be  of  no  intrinsic  value  ;  that  the  value  put  on  them  when  the 
injury  occurred  was  factitious ;  and  that  if  as  much  had  been 
known  of  them  then  as  at  the  time  of  trial,  they  could  have 
been  bought  for  one  cent  each.  He  further  offered  to  prove, 
that  Alpine  mulberry-trees  were  not  worth  cultivating  for  the 
purpose  of  raising  silk-worms ;  that  those  in  question  were  pur- 
chased by  the  plaintiff  with  a  view  of  growing  seedlings  for 
sale,  and  that  they  were  of  no  value  for  that  purpose  the  next 
year  after  they  were  bought.  These  offers  were  overruled, 
and  (notwithstanding  the  dissenting  opinion  of  Cowen,  J.)  the 
Supreme  Court  held  rightly.  Nelson,  J.,  in  delivering  the 
opinion  of  the  court  said,  — 

"  The  damages  should  afford  the  plaintiff  an  adequate  indemnity  for   foGOl 
the  loss  sustained  at  the  time  the  injury  happened.     Assuming  that  there 
is  no  defect  in  the  quality  of  the  article,  the  fair  test  of  its  value,  and  conse- 

V.  The  Cleveland  &  Toledo  R.  Co.  14  Mich.  489,  and  the  rule  in  Wibert  v.  The  N.  Y.  &  Erie 
R.  R.  Co.  disapproved,  and  the  opposite  one  maintained.  In  this  case  the  contract  of  the  car- 
rier was  to  transport  from  Toledo  to  Buffalo,  cattle  whose  ultimate  destination,  as  the  carrier 
was  informed  at  the  time,  was  tlie  Albany  or  New  Y'ork  market.  There  was  no  fall  in  prices 
before  the  cattle  had  reached  Buffalo,  but  owing  to  the  defendant's  delay  they  were  not  deliv- 
ered at  Albany  until  after  a  decline  had  occurred.  The  court  held  the  loss  to  be  the  direct 
consequence  of  the  defendant's  delay  attending  the  cattle  to  their  destination,  as  the  effects  of 
a  fatal  injury  would  have  followed  them  to  their  death,  and  one  therefore  for  which  it  must 
make  compensation. 

But  although  the  subject  is  involved  in  a  conflict  of  authority  (see  the  able  opinion  of  Mar- 
vin, J.,  in  Wibert's  case,  supra),  we  think  the  true  rule  is  that  which  seems  established  in  Great 
Britain.  As  in  other  questions  of  damages  the  principle  of  indemnity  should  be  our  guide  ;  and 
where  through  the  delay  or  other  default  of  the  carrier,  profits  are  lost  which  would  clearly 
have  been  otherwise  realized  as  the  natural  and  direct  result  of  the  safe  and  prompt  transporta- 
tion of  marketable  goods  to  the  intended  market,  and  not  merely  of  a  private  or  special  specula- 
tion of  the  shipper,  the  loss  should  be  borne  by  the  carrier.  No  other  rule,  we  think,  will  give 
the  actual  indemnity  the  law  ordains.  In  the  language  of  Mr.  Justice  Curtis,  the  "  actual 
damages  clearly  include  the  direct  and  actual  loss  which  the  plaintiff  sustains  joro/j^er  rem  ipsavi 
non  haliilain."  Philadelphia,  Wilmington,  and  Baltimore  R.  Co.  v.  Howard,  13  How.  (U.  S.) 
307.  If  the  profit  lost,  although  certain,  would  have  resulted  only  from  a  particular  operation 
or  speculation,  of  which  the  carrier  had  no  knowledge  beforehand,  actual  or  presumed,  it  can- 
not be  recovered. 

The  allowance,  however,  of  the  profits  in  the  former  case  is  not,  we  think,  fairly  liable  to  the 
objection  of  uncertainty.  Such  allowance  must  indeed  be  based  on  the  fact  that  they  would 
certainly  have  been  obtainal)le  if  the  carrier  had  fulfilled  his  duty.  If,  notwithstanding  they 
had  arrived  within  the  reasonable  time  which  the  law  prescribes,  it  might  still  have  been 
impracticable  to  realize  them,  they  should  not  be  recovered. 

Nor  are  they  subject  to  the  objection  of  remoteness.  It  is  true,  a  decline  in  the  market  during 
the  period  of  the  carrier's  delay  is  in  one  sense  the  direct  cause  of  the  loss  of  profits.  But  the 
delay  was  the  direct  cause  of  the  owner's  inability  to  take  advantage  of  the  higher  market  rate. 
Had'  it  not  occurred,  he  would  have  made  the  profit.  The  loss  is  thus,  we  think,  sufficiently 
proximate  to  make  the  responsibility  attach,  and  its  compensation  conforms  to  the  analogies  of 
the  law.  (See  ante,  67,  note  2).  The  rule  that  the  carrier  who  is  the  party  in  the  wrong  should 
bear  this  loss  like  any  other  which  results  from  his  defixult,  has,  we  think,  the  advantage  of 
justice  —  an  advantage  in  the  rule  of  damages  which  we  should  never  lose  sight  of  in  consid- 
ering technical  rules  of  law  —  and  it  confonns  to  the  general  principles  which  govern  the 
allowance  of  profits.     (Ante,  76,  80,  note  1.) 


404  COMMON    CARKIERS.  [CII.    XIII. 

quently  of  the  loss  to  the  owner,  is  its  price  at  the  time  in  the  market.  The 
objection  to  the  evidence  offered  is,  that  it  proposes  to  take  into  consideration  the 
fluctuations  of  the  market  value  long  subsequent  to  the  time  when  the  injuiy  hap- 
pened, thereby  making  the  measure  of  damage  to  depend  on  the  accidental  fall 
of  prices  at  some  future  period,  which  might  or  might  not  occur,  and  if  it  did, 
the  loss  might  or  might  not  have  fallen  on  the  plaintiff,  as  for  aught  the  court  or 
jury  could  know  he  may  have  parted  with  the  property  before  its  depreciation." 

The  Carrier  may  Show  that  the  Loss  would  have  Kesulted 
NOTWITHSTANDING  HIS  Fault.  —  The  general  rule  that  we  have 
noticed,  when  discussing  the  subject  of  agency,  applies  also  to 
the  class  of  cases  which  we  are  now  examining,  namely,  that  if 
the  carrier  break  his  contract  or  disobey  his  orders,  any  subse- 
quent loss  will  be  attributed  to  his  illegal  act ;  but  it  is  still 
competent  for  him  to  show  that  if  he  had  j)erformed  his  con- 
tract the  same  loss  would  have  resulted  to  his  employer ;  and 
in  such  a  case  the  verdict  will  be  for  nominal  damages  only. 

An  action  was  brought  in  the  English  Common  Pleas,  against 
the  owner  of  a  ship  for  a  breach  of  an  agreement  that  she 
should,  with  all  convenient  speed,  after  discharging  her  cargo 
at  Plymouth,  proceed  to  Liverpool  and  take  in  a  cargo  of  salt 
for  Terceira,  and  after  delivering  it,  should  go  to  St.  Maloes  for 
fruit.  The  captain  refused  to  go  to  Terceira,  on  the  ground 
that  that  port  was  blockaded.  But  as  to  whether  it  was  an 
effective  blockade  or  not  there  was  much  contradictory  testi- 
mony. Tindal,  C.  J.,  charged,  that  if  the  ship,  when  she  ar- 
rived off  Terceira,  would  have  been  prevented  from  entering 
by  an  effective  blockade,  then  it  would  be  a  case  for  nominal 
damages  only.  But  if  otherwise,  or  if  by  waiting  a  reasonable 
time  she  could  have  got  in,  the  jury  should  not  confine  them- 
selves to  nominal  damages.-^ 

Acceptance  of  Goods  does  not  Bar  the  Action.  —  It  is  well 
settled,  that  in  cases  of  negligence,  the  subsequent  acceptance 
of  the  goods  is  no  bar  to  an  action  for  injuries  such  as  those  of 
which  we  have  been  treating.  Nothing  but  a  release  or  satis- 
faction constitutes  such  a  bar.  But  acceptance  may  be  given 
in  evidence  in  mitigation  of  damages,  so  as  to  limit  the  recov- 
ery to  the  actual  loss  sustained  by  the  owner.*  ^ 

Agreements  to   Furnish  Freight.  —  An    interesting  question 

*  Story  on  Bailments,  §  582  a  ;  Bowman    Moore  &  P.  790;    S.   C  7  Bing.  153;  Wil- 
V.  Teal,  23  Wend.  306  ;  Baylis  v.  Usher,  4     loughby  v.  Backhouse,  2  Barn.  &  Cres.  821. 

1  Medeiros  v.  Hill,  8  Bing.  231  ;  1  M.  &  Scott,  311  ;  5  C.  &  P.  182. 
-  Hackett  v.  B.  C.  &  M.  Railroad,  35  N.  H.  390  {ante,  359,  note  3). 


CH.   XIII.]  AGREEMENTS    TO    FURNISH   FREIGHT.  405 

is  sometimes  presented,  where  the  carrier  brings  suit  on  [-JOl] 
the  vioUition  of  an  agreement  to  furnish  him  a  stipu- 
lated quantity  of  freight.^  And  liere  the  principle  apphes 
which  we  have  ah'eady  had  occasion  to  notice,*  that  the  party 
plaintitr  is  bound  to  take  reasonable  measures  to  reduce  tlie 
amount  of  injury  consequent  on  the  defendant's  default;  and 
it  is  held  that  the  carrier  must  stand  ready  to  receive  any  other 
freight  that  is  offered,  and  thus,  as  ftxr  as  is  reasonably  practica- 
ble, avoid  throwing  an  unnecessary  loss  on  the  party  in  default.^ 
Thus  in  New  York,  it  has  been  decided,  where  a  party  contracts 
to  load  a  ship  with  a  given  number  of  tons  at  a  stipulated  price 
and  fails  to  deliver  the  whole  quantity,  that  if  goods  are  ofiered 
by  a  third  person  to  be  shipped,  to  an  amount  sufficient  to  make 
up  the  deficiency,  though  at  a  reduced  rate  of  compensation, 
but  still  at  current  prices,  the  owner  or  master  is  bound  to 
receive  such  goods,  and  place  to  the  credit  of  the  original  char- 
terer the  net  earnings  of  the  substituted  cargo,  after  making  all 
reasonable  deductions  resulting  from  the  circumstances  of  the 
case;  and  such  is  the  English  rule.f^ 

In  a  case  t  that  came  up  to  the  Supreme  Court  of  the  United 
States,  from  the  Pennsylvania  Circuit,  the  plain tift"s  intestate 
agreed  to  deliver  for  the  defendant  at  St.  Louis  by  a  certain 

*  Ante,  95  ;  and  see  post,  ch.  xvii.  Recoup-  Arkansas,  in  an  able  opinion  of  Scott,  J.,  as 

ment.  to    a    contract   for   personal    services.     Wal- 

t  Heckscher   v.   McCrea,    24   Wend.   304  ;  worth   v.   Pool,  4   English,  394 ;   Abbott   on 

Shannon  v.  Comstock,  21   Wend.  457  ;  Puller  Shipping,   part   iv.   ch.    1.     Of  the   carriage 

V.  Staniforth,  1 1  East,  232.     See  these  cases  of  goods  in  merchant  ships,  and  cases  there 

cited  and  confirmed  in   Costigan  v.  Mohawk  cited. 

and  Hudson  11.  R.   Co.  2  Denio,  610.      See  |  Robinson   v.    Noble's   Adm'rs,   8   Peters, 

also,  the  reasoning  of  these  cases  adopted  in  181. 

1  See  Benson  v.  Atwood,  13  Md.  20.  On  a  contract  to  furnish  freight  at  a  distant  port,  to 
load  a  vessel  which  goes  to  the  port  but  finds  none,  and  is  compelled  to  return  empty,  the 
measure  of  damages  is  the  contract  price.     Bradley  v.  Denton,  3  Wis.  557. 

2  IMurrell  v.  Whiting,  32  Ala.  54.  The  measure  of  damages  against  a  charterer  who  refuses 
to  furnish  a  cargo  accordiug  to  his  contract,  is  the  amount  the  vessel  would  have  earned  at  the 
rates  specified,  deducting  her  net  earnings  during  the  time  she  would  have  been  occupied  in  the 
charter,  including  the  lav  days.  Ashburner  v.  Balchen,  7  N.  Y.  262  ;  Smith  v.  McGuire, 
3  Hurl.  &  Nor.  554  ;  Dean  v.  Ritter,  18  Mo.  182. 

AVherc  goods  are  wrongfully  taken  from  a  vessel  by  the  shipper  before  the  commencement  of 
the  voyage,  the  sinp-owner  is  not  entitled  to  tlie  stijnilated  freight  as  such,  but  only  to  an 
indemnity  for  the  breach  of  contract.  All  the  attendant  circumstances  should  be  laid'  before 
the  jury,  to  enable  them  to  determine  what  will  be  an  indemnity.  If  the  carrier  has  received 
other  goods  in  place  of  those  withdrawn,  or  if  by  diligence  he  might  have  done  so,  or  if  he 
could  have  abandoned  the  contemplated  voyage,  and  have  found  other  employment  for  his 
vessel,  these  facts  may  be  ground  for  a  deduction  from  the  entire  sum  stipulated  to  be  paid  as 
freij^ht.     Bailey  v.  Damon,  3  Gray  (Mass.),  92. 

Vice  versa  ;  where  the  carrier  failed  to  have  a  ship  at  a  foreign  port  ready  to  receive  goods 
there,  the  measure  of  the  damages  recoverable  against  him  was  held  to  be  the  difference  between 
the  contract  price  and  the  market  rate  of  freight  at  that  port  for  the  voyage,  with  interest  from 
the  time  when  the  freight  would  have  been  payable  if  the  contract  had  been  kept.  Higginson 
V.  Weld,  14  Gray  (Mass.),  165. 

^  The  measure  is  the  diiference  between  what  the  plaintiff  would  have  earned  had  the  con- 
tract been  fulfilled  and  what  he  has  earned  notwithstanding  the  breach.  Hunter  v.  Fry,  2  B. 
&  A.  421. 


406  COMMON    CARRIERS.  [CH.    XIII. 

time  a  quantity  of  army  stores,  supposed  to  amount  to  3,700 
barrels,  which  the  defendant  on  his  part  agreed  to  furnish  on 
the  Ohio  River;  the  defendant  to  pay  a  certain  sum  per  barrel, 
one  half  to  be  paid  at  St.  Louis  and  the  other  half  at  Cincin- 
nati, with  a  memorandum  "  that  the  payment  to  be  made  at 
Cincinnati  was  to  be  made  in  the  paper  of  the  Miami  Exporting 
Company  or  its  equivalent."     The  defendant  did  not  furnish  the 

whole  3,700  barrels ;  and  the  plaintiff  brought  suit,  as 
[362]  well  for  the  freight  of  the  portion  furnished,  as  damages 

for  the  non-delivery  of  the  remainder.  The  notes  of 
the  Miami  Company  were  not  worth  more  than  66  per  cent. 
The  judge  who  tried  the  cause,  held, — 

"  That  the  plaintiff  could  not  recover  damages,  according  to  the  number  of  tons 
the  boat  was  capable  of  containing.  The  rule  of  law  in  cases  where  there  has 
been  a  failure  to  furnish  the  stipulated  freight  and  there  exists  no  charter-party, 
is  for  the  jury  to  take  all  the  circumstances  into  consideration,  and  to  make  an 
allowance  for  any  freight  which  the  master  has  it  in  his  power  to  transport  in  ad- 
dition to  that  which  was  furnished.  If  the  lading  should  not  be  complete  with- 
out the  default  of  the  master,  tlie  rule  is  to  estimate  the  freight  by  means  of  an 
average,  so  as  to  take  neither  the  greatest  possible  freight  nor  the  least ;  and 
such  average  is  the  proper  measure  of  damages." 

And  that  as  to  the  paper  of  the  Miami  Exporting  Company, 
the  defendant  having  failed  to  tender  to  the  plaintiff's  intestate 
that  paper  or  its  equivalent,  the  plaintiff  was  entitled  to  re- 
cover the  amount  in  specie  with  interest.  The  Supreme  Court 
reversed  this  judgment,  on  the  grounds  that  the  defendant  had 
not  stipulated  to  furnish  any  precise  amount  of  freight,  and 
that  the  specie  value  of  the  notes  at  the  time  they  should  have 
been  paid  was  the  rule  by  which  the  damages  should  have  been 
estimated.* 

Refusal  to  Receive  Cargo.  —  Agreements  of  this  kind  are 
sometimes  broken,  on  the  other  hand,  by  the  ship-owner  refusing 
to  receive  the  cargo  on  board.  In  a  case  of  this  kind,  where 
the  contract  was  to  take  on  board  a  vessel  a  cargo  of  wheat  at 
a  certain  freight,  and  it  was  proved  that  the  defendant  refused 
to  receive  the  wheat,  and  that  the  price  of  freight  rose  three- 
pence per  bushel  between  the  date  of  the  agreement  and  the 
sailing  of  the  vessel,  it  was  held  that  the  difference  between  the 

*  This  case,  though  it  raises  some  important  to  notes  payable  in  a  specific  article,  it  being 

questions,  jiroperly  decides  nothing  as  to  the  there  held,  that  if  the  specific  article  is  not 

amount  of  damages  ;  but  it  may  be  noticed,  as  tendered  the  party  loses  his  privilege  and  must 

to  the  latter  point,  that  it  is  adverse  to  the  pay  in  money.     Ante,  252,  295. 
decisions  of  the  courts  of  New  York  in  regard 


CH.   XIII.]  PASSENGER    CARRIERS.  —  TELEGRAPHS.  407 

price  agreed  upon  for  transporting  the  wheat  and  that  for  which 
its  carriage  might  have  been  obtained  by  others  at  the  time  when 
the  ship  was  to  receive  it,  was  the  true  measure  of  damages.^ 
It  was  insisted  that  the  shipper  was  bound  to  show  affirmatively 
that  he  had  a  cargo  of  the  kind  agreed  on,  ready  for  shipment 
at  the  time  fixed  by  the  contract,  or  that  he  could  only  recover 
nominal  damages  j  but  it  was  decided  that  this  was  not  neces- 
sary.* ^ 

*  Ogdcn  V.  Marshall,  4  Scld.  340.3 

1  Whore  a  railway  companj'  refused  to  carry  at  the  ordinary  rate  packed  parcels  for  a  carrier, 
whereby  lie  was  forced  to  send  them  by  a  circuituous  route  at  a  greater  expense,  he  was  held 
not  entitled  to  recover  for  loss  of  business  alleged  to  have  been  sustained  in  consequence. 
Crouch  V.  Great  Northern  R.  Co.  11  Exch.  742. 

^  It  is  proper  to  mention  here  the  cases  upon  the  measure  of  damages  for  failure  or  delay  to 
transport  a  passenger. 

In  an  action  against  a  common  carrier  for  unreasonable  delay  in  the  transportation  of  a  pas- 
senger, the  plaintiff  is  only  entitled  (no  malice  or  fi-aud  being  shown)  to  recover  his  actual 
damages.  Evidence  of  the  rate  of  wages  earned  by  persons  of  the  plaintiff's  trade  at  the  place 
of  his  destination,  during  the  period  of  the  delay,  is  admissible  to  guide  the  jury  in  fixing  the 
damages.  But  that  rate  is  not  the  measure.  The  jurj-  are  to  consider  the  jjrobabilities  that 
the  plaintiff  would  have  obtained  employment  immediately  npon  his  arrival,  and  that  it  would 
have  continued  during  the  entire  period  of  the  delay.  Yonge  v.  The  Pacific  Mail  Steamship 
Company,  1  Cal.  33.3.  And  where  a  person  in  a  foreign  port  contracted  with  the  master  of  a 
vessel  for  a  passage  to  this  country,  and  paid  a  part  of  the  passage-money  in  advance,  but  the 
master  failed  to  fulfill  his  contract,  it  was  held  that  the  other  party  was  entitled  to  recover  the 
sum  paid  in  advance,  the  expenses  incurred  in  awaiting  the  sailing  of  another  ship,  and  the 
sum  paid  to  the  second  vessel  for  a  passage  in  her.  The  Zenobia,  1  Abbott's  Adm.  R.  80.  See 
also  on  this  branch  of  the  subject,  Hamlin  v.  The  Great  Northern  Railway  Co.  1  H.  &  N. 
Exch.  408  ;  Porter  v.  The  Steamboat  New  lingland,  17  Mo.  290. 

But  where  the  action  was  for  neglect  to  transport  the  passenger,  the  hitter's  expenses  during 
the  detention  and  those  of  a  consequent  illness,  and  the  time  lost  by  him  both  directly  from 
the  detention  and  by  the  illness  afterwards,  so  far  as  these  were  occasioned  by  the  carrier's 
negligence  and  breach  of  duty,  were  all  declared  by  the  New  York  Court  of  Appeals  legitimate 
items  of  damage.  Williams  v.  Vanderbilt,  28  N.  Y.  217.  And  in  such  an  action,  it  was  held 
by  the  same  court  that  the  fact  there  was  no  evidence  of  the  value  of  the  plaintiff's  time  did 
not  preclude  the  jury  from  giving  him  such  compensation  therefor  as  they  thought  reasonable. 
Ward  V.  Vanderbilt,  34  Howard's  Pr.  R.  144. 

In  Mississippi,  the  physical  condition  of  a  passenger  who  had  suffered  great  bodily  exposure 
in  consequence  of  the  carrier's  neglect  to  stop  his  vessel  and  take  him  in  according  to  agree- 
ment, was  allowed  to  be  shown  in  aggravation  of  the  damages.  Heirn  v.  McCaughan,  32  iliss. 
(3  George)  17. 

Where  the  master  of  one  of  a  line  of  steamers  plying  to  and  from  San  Francisco,  and  then 
bound  to  that  port,  having  on  board  a  person  who  had  under  pain  of  death  in  case  of  his  i-eturn, 
been  expelled  from  there  by  the  "  Vigilance  Committee,"  a  revolutionary  authority  in  actual 
government  of  the  city,  stop])ed  his  vessel  and  put  the  passenger  on  a  return  steamer  of  the 
same  line  to  be  taken  back  to  the  port  from  which  he  had  embarked,  although  the  act  was 
illegal,  the  circumstances  which  induced  it  were  allowed  as  an  important  mitigation  of  the 
damages,  which  were  therefore  reduced  by  the  Supreme  Court  of  the  United  States,  on  appeal, 
from  $4,000  to  $50.  Inconvenience,  loss,  and  delay  subsequently  sustained  by  the  passenger 
in  getting  to  San  Francisco,  in  consequence  of  the  generally  known  power  and  purpose  of  the 
"Vigilance  Committee,"  were  not  attributable  to  the  master,  and  could  not  be  compensated 
in  the  action.     Pearson  v.  Duane,  4  Wallace,  605. 

Interesting  questions  have  recently  arisen  relative  to  the  rights  of  colored  persons  in  con- 
vevances  furnished  by  common  carriers.  AVestchester  and  Phila.  R.  R.  Co.  v.  Miles,  55  Penn. 
St  209 ;  Pleasants  v.  N.  B.  &  M.  R.  R.  Co.  34  Cal.  586 ;  Turner  v.  N.  B.  &  M.  R.  R.  Co. 
Ibid.  594.  The  first  of  these  eases  was  an  action  of  trespass  brought  against  the  defendant 
company  by  the  plaintiff  for  removing  her  from  a  car  by  a  conductor,  the  defendants'  agent. 

^  Since  the  last  edition  of  this  work  the  law  relating  to  the  recent  invention  of  telegraphs 
may  be  said  to  have  sprung  up.  It  is  true  that  in  one  point  of  view  it  is  but  the  application  of 
established  principles  to  new  circumstances,  but  such  is  always  the  history  of  legal  science. 


408  COMMON    CARRIERS.  [CH.    XKI. 

The  plaintiff  jrot  into  the  car  of  the  defendants  at  Philadelphia  to  po  to  Oxford,  and  took  a 
seat  at  or  near  the  middle  of  it.  A  rule  of  the  road  recpiired  the  conduetor  to  make  colored 
persons  sit  at  one  end  of  the  car.  The  conductor  tried  to  nuike  her  do  this  and  told  her  of 
the  rule,  but  she  refused  to  take  the  other  seat.  He  warned  her  that  she  must  leave  the  cars  if 
she  refused,  and  at  last  put  her  out.  The  plaintiff  obtained  a  verdict  in  the  court  below,  and 
the  defendants  removed  the  case  to  the  Supreme  Court.  The  latter  tribunal  (A<,mew,  J.) 
decided  that  although  no  one  could  be  excluded  from  public  conveyances  by  a  common  car- 
rier on  account  of  color,  religious  belief,  political  relations,  or  ]jrcjudice,  still  the  right  to  reg- 
ulate travel  did  undoubtedly  belong  to  such  carriers,  and  under  it  tliey  might  impose  restric- 
tions on  their  passengers,  and  the  court  cited,  as  examples  of  these  lawful  restrictions,  the 
regulation  of  roads  separating  the  sexes,  or  assigning  to  a  particular  class,  as,  for  example, 
soldiers,  separate  cars.  In  the  exercise  of  such  right,  the  company  should  take  into  account 
all  the  circumstances  of  the  case,  as,  for  instance,  the  prejudice  of  race,  which  might  lead,  if 
regulations  were  not  made,  to  breaches  of  the  peace.  Acting  on  these  principles  the  court 
held  that  a  separation  of  colored  passengers  from  white  was  a  proper  regulation  of  the  road, 
and  granted  a  new  trial.  In  Pleasants  v.  N.  B.  &  M.  R.  R.  Co.  the  Supreme  Court  of  Cal- 
ifornia decided  that  a  colored  person  refused  the  right  to  enter  a  railroad  car,  is  entitled  to 
nominal  damages,  even  if  no  actual  damages  are  proved.  In  Turner  v.  N.  B.  &  M.  R.  R.  Co. 
the  plaintiff  was  ejected  from  the  defendants'  car.  Probably  the  Pennsylvania  case  aboVe 
states  the  law  which  governs  cases  svich  as  these,  as  clearly  as  need  be  desired. 

The  novelty  which  tests  the  wit  of  the  bar  and  invites  the  wisdom  of  the  bench  in  this  inquiry, 
as  in  so  many  others  which  start  up  beneath  the  rapid  steps  of  knowledge  in  this  century,  is 
not  in  the  principle  involved,  but  in  the  questions  whether  a  certain  known  principle,  or  what 
one  of  several  known  principles,  is  applicable,  and  if  the  fact  of  the  ajiplicability  is  determined, 
to  what  extent  it  goes,  and  how  far  it  is  modified  by  the.  new  circumstances. 

The  question  which  has  been  chiefly  considered  in  determining  the  nature  and  extent  of  the 
telegraph  company's  liability  and  as  a  consequence  the  measure  of  the  damages  sustained  by  its 
default  in  transmitting  and  delivering  a  message,  is  whether  it  is  to  be  regarded  as  a  common 
carrier.  Ifitis,  we  have  rules  established  by  the  legal  wisdom  of  centuries  to  enable  us  to 
determine  the  degree  of  its  liability.  By  these  rules,  where  the  contract  of  transmission  is  un- 
limited by  a  special  agreement,  the  liability  would  be  that  of  an  insurer,  unless  the  case  falls 
within  one  of  the  two  familiar  exceptions  to  that  severe  responsibility.  As  an  insurer  it  would 
be  held  to  make  full  indemnity  for  the  actual  loss  sustained,  without  regard  to  the  limitations 
which  restrict  the  liability  in  the  case  of  other  breaches  of  contract. 

The  adjudged  cases  are  our  only  sure  guide.  In  order  to  determine,  therefore,  whether  or 
not  the  telegraph  company  is  or  not  a  common  carrier,  and  at  the  same  time  to  see  on  what 
other  principles  the  damages  arising  from  its  default  should  be  measured,  we  shall  refer  to  the 
leading  decisions  on  the  subject,  mainly  in  chronological  order,  first  taking  the  cases  where  the 
severer  liability  has  been  maintained  and  then  the  opposite  class. 

In  the  early  case  of  McAndrew  v.  The  Electric  'Telegraph  Company  (17  C.  B.  3),  a.  d. 
1855,  it  was  considered  that  the  telegraph  company,  as  bound  by  the  statutes  regulating 
telegraphs  to  transmit  all  messages  for  the  public,  stood  in  the  same  ])osition  as  carriers  or  inn- 
keepers, and  was  therefore  held  to  the  same  degree  of  liability,  though  a  nonsuit  was  sustained 
on  another  point. 

In  the  case  of  Bowen  v.  The  Lake  Erie  Telegraph  Co.  1  Am.  Law  Reg.  685  (1858),  the 
Court  of  Common  Pleas  of  Ohio,  at  Nisi  Prius,  on  the  same  ground  held  the  company  to  the 
same  degree  of  liability,  considering  (although  not  in  terms  calling  it  a  common  carrier)  that 
as  these  companies  hold  themselves  out  to  transmit  dispatches  correctly,  they  are  under  obliga- 
tion to  do  so,  unless  prevented  by  causes  over  which  they  have  no  control.  In  this  case,  owing 
to  a  mistake  of  the  defendants  in  transmitting  a  dispatch,  one  hundred  shawls,  instead  of  a 
single  one,  were  sent  from  New  York  to  Michigan,  and  the  damages  which  the  jury  found  in 
conformity  with  the  charge  of  the  court,  consisted  of  a  sum  equal  to  the  charges  for  freight  and 
the  depreciation  in  value  of  the  shawls,  which  had  to  be  reshipped  to  the  plaintifi's  and  reached 
them  after  the  shawl  season  had  closed. 

In  the  case  of  Parks  v.  Alta  Cal.  Telegraph  Co.  13  Cal.  422  (1859),  the  telegraph  company 
undertook  to  transmit  a  message  in  the  following  words  :  "  Due  1800.  Attach  if  you  can  find 
property.  Will  send  note  by  to-morrow's  stage."  Owing,  as  a])pcared,  to  the  company's 
delay  in  forwarding  the  dispatch  till  the  following  day,  the  debtor's  j)roperty  (which  we  infer 
would  have  been  enough  to  cover  the  plaintiff's  claim)  was  all  seized  under  intervening  pro- 
cess, and  the  plaintiff  could  attach  nothing.  It  was  held  that  the  company's  obligation  was 
that  of  a  common  carrier,  and  that  it  was  liable  for  the  amount  of  the  debt,  the  loss  of 
which  was  considered  to  be  the  natural  and  proximate  damage  resulting  from  its  breach  of 
contract. 

The  same  measure  was  applied  with  great  stringency,  under  similar  circumstances,  in  the 
case  of  Bryant  v.  The  American  Telegrajjh  Company,  1  Daly,  575  (18(55).  In  this  case,  which 
we  will  notice  out  of  the  chronological  order,  one  of  the  plaintiffs  had  learned  at  a  quarter  past 
four  o'clock  in  the  afternoon  that  a  firm  in  Providence,  Rhode  Island,  of  which  one  Bennet 


CH.   Xm.]  TELEGRAPHS.  409 

was  a  menil)er,  and  which  owed  tlicin  $12,000,  was  insolvent,  and  that  Beniiet  who,  liad  been 
tem])orarily  in  New  York,  h;i(i  loft  for  I'rovidencc  l\v;that  afternoon's  train  They  tliereupon 
directed  tlieir  attorney  to  send  a  dis])atch  to  I'rovidenec — to  have  lieiinet's  house  and  lot 
attached  I'or  his  deht.  The  attorney  aeeordin>j;ly,  at  half-past  eij^iit  o'clock  in  the  evenini;,  left 
a  message  to  that  eflect  at  the  defendant's  othee  in  New  York,  addressed  to  Mr.  Taine,  an 
attorney  in  Providence.  By  tlie  laws  of  Rhode  Island,  the  attaclnuent  could  be  made  only 
when  Ben  net  was  out  of  the  State. 

The  messaue  contained  this  clause :  "Ascertain  in  the  morning  if  mortgage  on  house  on 
record  ;  if  so,  withdraw  attachment."  At  the  time  of  leaving  it,  the  attorney  explained  to  the 
defendant's  clerk  that  its  object  was  to  get  an  attaeiunent  on  projierty,  and  that  it  would  do  no 
good  unless  delivered  in  time  for  the  attachment  to  be  made  bcfcn-e  the  train  on  which  Bennet 
was,  should  enter  Khode  Island.  The  attorney  paid  for  the  dispatch,  and  ottered  to  ])ay  any 
further  expense  necessary  to  send  it  at  once.  The  clerk  agreed  to  send  it  ]ironiptly,  and  it  was 
dispatched  at  ten  minutes  past  nine  and  received  by  the  operator  in  Providence  at  half  past 
nine,  with  a  direction  to  send  it  in  haste.  At  the  time  of  its  receij)t  he  was  engaged  in  receiv- 
ing rejiorts  for  the  ])ress,  which  by  statute  were  entitled  to  precedence  over  all  other  matters, 
ami  replied  that  it  could  not  be  sent  that  night,  as  the  delivery  boy  had  gone  home.  The  New 
York  operator  rejoined  that  it  must  be  delivered,  to  which  the  other  then  signified  his  assent. 
The  newsi)aper  reports  continued  uninterrujHedly  nntil  half-past  eleven  o'clock,  when  an 
interval  occurring,  the  I'rovidencc  oi)erator  had  the  dispatch  copied,  and  procured  a  chance  mes- 
senger to  deliver  it,  which  was  done  a  few  minutes  after.  By  the  time  the  attorney  was  roused 
from  his  bed  and  the  dispatch  delivered  to  him,  it  was  too  late  to  effect  the  attachment  before 
Bonnet's  arrival  in  the  State.  He  went  into  bankruptcy  the  next  day,  and  the  plaintiffs 
obtained  but  S500  from  his  estate.  The  house  and  lot  were  worth  over  $12,000.  (considering 
tliat  there  was  gross  negligence  in  the  want  of  promptness  in  delivering  the  message 
at  Providence,  a  majority  of  the  court  held  that  the  company  was  liable,  and  that  the 
measure  of  damages  was  the  amount  of  the  debt  with  interest  from  the  day  of  the  delivery 
of  the  message  loss  the  $500  collected.  Daly,  First  Judge,  dissented  in  a  carefully  considered 
opinion,  on  grounds  of  which  the  following  is  a  summary  statement.  Notwithstanding 
the  explanation  of  the  message  to  the  defendant's  clerk,  the  defendant  having  been  under  no 
obligation  to  assume  so.  great  a  risk,  could  not  under  the  cii'cumstances,  with  this  imjjcrfect 
information,  have  intended  to  do  so  for  so  trival  a  compensation  as  the  price  of  the  dispatch, 
even  assuming  the  New  York  clerk  to  have  had  the  authority  necessary  to  bind  the  company 
to  this  extent.  The  company  was  not  advised  of  the  exact  circumstances  making  diligence 
peculiarly  necessary.  It  was  not  informed  that  the  firm  of  which  the  plaintiff's  debtor  was  a 
member  was  insolvent,  that  his  house  was  unincumbered,  nor  that  it  was  of  value  enoTxgh  to 
pay  the  debt,  nor  could  it  be  presumed  to  know  how  much  time  was  necessary^  to  make  the 
attachment,  nor  its  precise  legal  effect.  The  loss  was  too  remote  and  contingent  a  resiUt  of  the 
defendant's  delay  to  impose  so  heavy  a  liability,  and  the  plaintiffs  themselves,  with  full  knowl- 
edge of  the  facts,  "  had  not  been  especially  diligent."  The  learned  judge  observed  also  that  the 
plaintiff's  debt  had  not  been  extinguished,  and  that  although  the  debtors  were  then  insolvent, 
they  might  become  able  and  be  compelled  to  pay  the  debt  within  the  period  during  which  it 
would  continue  as  an  obligation  against  them.  Citing  with  approbation  the  case  of  Lands- 
berger  v.  The  Magnetic  Telegraph  Co.  32  Barb.  5.30  (infra),  he  held  that  the  measure  of  the 
plaintiffs  damages  should  be  confined  to  the  expense  sustained  by  them  in  the  transmission  of 
the  dispatch. 

The  rule  adopted  in  this  case  seems  very  severe,  as  it  would  appear  from  the  report  that  but 
a  comparatively  small  part  of  the  time  lost  was  due  to  the  defendant's  default. 

In  the  case  of  The  Washington  and  N.  Orleans  Telegraith  Co.  v.  Hobson,  15  Gratt.  122 
(1860),  the  Court  of  Appeals  of  Virginia,  although  considering  that  the  question  whether  the 
jury  might  or  might  not  regard  the  telegraph  company  as  a  common  carrier  was  not  properly 
before  them,  approved  the  refusal  of  the  judge  at  Nisi  Prius  to  instruct  the  jury  that  the 
company  was  to  be  considered  as  responsible,  not  as  common  carriers,  "  but  as  general  agents 
only,  not  liable  for  damages  from  a  mistake  or  misdelivery  of  a  message,  except  in  cases  of 
such  gross  and  culpable  negligence  as  in  law  amounts  to  a  fraud."  The  plaintiffs  below  had 
delivered  to  the  company  a  message  to  be  transmitted  to  the  plaintiff's  factors  at  New  Orleans, 
instructing  them  to  buy  five  hundred  bales  of  cotton,  which  number  by  the  company's  fault 
was  altered  to  twenty-five  hundred,  and  the  factors,  under  this  misinformation,  purchased  two 
thousand  and  seventy-eight  bales  before  the  mistake  was  discovered.  It  was  held  that  if  the 
company  were  liable  for  the  damages  arising  from  the  alteration  of  the  message,  the  measure 
of  these  was  what  was  lost  on  the  sale  at  Mobile  of  the  excess  of  the  cotton  above  that 
ordered,  or  if  it  were  sold  elsewhere,  what  would  have  been  the  loss  on  it  if  sold  at  Mobile  in 
the  condition  and  circumstances  in  which  it  was  when  the  mistake  was  discovered,  and  that 
the  regular  commission  of  the  factors  in  the  jnirchase  should  be  included  in  the  damages. 

In  the  case  of  the  New  York  and  Washington  Printing  Telegraph  Co.  v.  Dryburg,  35  Penn. 
298  (1860),  the  agent  of  the  company,  who  received  a  message  directing  the  purchase  of  two 
hand  bouquets,  en-oneously  supposing  the  word  "hand"  to  be  "bund,"  and  to  stand  for 
"hundred,"  delivered  it  thus  altered.  The  Supreme  Court  of  Pennsylvania,  in  an  action  on 
the  case  brought  by  the  receiver  of  the  message,  held  that  "  though  telegraph  companies  are 


410  COMMON    CARRIERS.  [CH.    XIII. 

not  like  carriers,  insurers  for  the  safe  delivery  of  what  may  be  intrusted  to  them,  their  ohliga- 
tions  as  far  as  they  reach  spring;  from  tlie  same  sources  —  namely,  the  public  nature  of  their 
employment,  and  the  contract  under  which  the  particular  duty  is  assumed  ;  "  and  that  one  of 
the  plainest  of  these  obliffations  was  to  transmit  the  very  message  prescribed.  And  a  verdict 
for  the  loss  and  expense  sustained  by  the  florist  in  cutting  and  procuring  a  large  number  of 
flowers  to  fulfill  the  order,  was  sustained. 

In  the  case  of  Kittenhousc  v.  The  Independent  Line  of  Telegraph,  1  Daly  (N.  Y.  C.  P.),  474 
(1865),  owing  to  the  defendant's  mistake  in  changing  the  wording  of  a  dispatch  transmitted 
by  it  from  the  plaintiffs  in  Washington  to  their  brokers  in  New  York,  the  brokers  bought  at 
the  morning's  board  of  brokers  in  the  latter  city  five  hundred  shares  of  Michigan  Southern 
Railroad  stock,  instead  of  selling  such  amount  of  that  stock  as  the  plaintiffs  then  had  on  hand, 
and  buying  at  that  board  five  hundred  shares  of  Hudson  River  Railroad  stock  ;  the  plaintiffs, 
on  discovering  the  defendant's  mistake,  corrected  it  by  repeating  the  dispatch,  which  in  its 
right  form  was  not  received  till  after  the  morning's  board  had  adjourned.  On  receiving  it  thus 
corrected,  the  brokers  sold  the  five  hundred  shares  of  Michigan  Southern  and  bought  the 
Hudson  River  stock  "  on  the  street."  The  former  were  sold  for  the  best  price  then  obtainable, 
but  which  exceeded  by  $1,750  the  lowest  price  at  which  they  could  have  been  bought  had  the 
message  been  correctly  received  in  due  time,  and  by  $1,375  the  average  price  of  the  morning 
board.  The  case  having  been  tried  before  the  court  without  a  jury,  judgment  was  given  for 
the  latter  sum  and  on  appeal  sustained,  the  court  holding  in  reference  to  the  loss  on  the  sale  of 
the  five  hundred  shares  of  Michigan  Southern  stock,  that  they  were  in  legal  effect  purchased 
on  the  defendant's  account.  The  company  not  having  been  notified  beforehand  of  the  in- 
tended sale,  could  not  be  held  for  this  portion  of  the  loss. 

Again,  in  the  case  of  De  Rutte  v.  The  New  York,  Albany  &  Buf.  Telegraph  Co.,  in  the  same 
court,  1  Daly  (N.  Y.  C.  P.  R.),  547,  it  appeared  that  in  the  transmission  of  a  dispatch  direct- 
ing the  purchase  of  wheat  at  the  limit  of  twenty-two  francs  the  hectolitre,  by  the  defendant's 
mistake  the  number  22  was  changed  to  25,  in  consequence  of  which  the  wheat  was  purchased 
at  what  proved,  on  a  sale  of  it  made  by  the  plaintiff  on  discovering  the  error,  a  loss  of  more 
than  $2,000.  The  court  held  this  loss  to  be  the  direct  and  immediate  consequence  of  a  breach 
of  the  contract  of  transmission,  and  to  furnish  the  measure  of  the  plaintiff's  damages.  Daly, 
First  Judge,  in  delivering  its  opinion,  held  that  the  public  policy  which  makes  common  car- 
riers responsible  as  insurers  in  order  to  prevent  fraud  and  collusion  with  thieves,  and  because 
the  owner  having  surrendered  the  possession  of  his  property  is  generally  unable  to  show  how 
it  was  lost  or  injured,  did  not  apply  to  telegraph  companies,  who  could  not,  therefore,  be  held 
as  insurers ;  but  that  such  policy  on  other  grounds  required  that  they  should  be  held  to  a 
stricter  accountability  than  ordinary  bailees,  and  that  as  the  value  of  their  services  consists  in 
the  correctness  and  diligence  with  which  they  transmit  messages,  any  unreasonable  delay  or 
any  error  should  be  presumed  to  have  arisen  from  their  negligence  unless  they  can  show  it  to 
have  proceeded  from  causes  beyond  their  control. 

The  severer  rule  and  larger  measure  of  damages  have  been  often  adopted  by  the  courts  in 
the  United  States  at  Nisi  Prius.  In  a  late  case  (tried  in  April,  1867)  in  the  Superior  Court  of 
the  city  of  New  York,  which  was  an  action  to  recover  damages  claimed  to  have  been  sustained 
by  the  plaintiff  from  the  defendant's  failure  to  transmit  a  "  telegram  "  from  New  York  to  St. 
Louis  instructing  one  D.  L.  Davison  "  to  sell  silver  lepines  for  $10  ;  also  others  for  less,"  the 
dispatch  was  not  sent,  and  owing  to  the  fluctuation  in  the  price  of  gold,  which  was  at  a 
premium,  there  was  a  considerable  decline  in  the  market,  before  the  arrival  of  a  letter  from  the 
plaintiff  at  St.  Louis  containing  the  same  instructions  with  the  disjiatch.  The  plaintiff  con- 
tended that  the  rule  of  damages  was  the  difference  between  the  market  price  of  the  watches  at 
the  time  when  the  dispatch  should  have  been  delivered  and  that  when  the  letter  was  received. 
The  defendant's  counsel  insisted  that  these  damages  were  too  remote,  and  that  the  company 
were  not  informed  by  the  purport  of  the  dispatch  or  otherwise,  that  it  had  a  pecuniary  value, 
or  what  would  or  might  be  the  nature  and  extent  of  a  loss  from  its  non-delivery,  and  that  they 
had  entered  into  no  engagement  based  upon  the  condition  of  the  gold  market,  and  had  not 
assumed  the  risk  of  a  fall  in  gold  nor  even  been  ap])rised  what  the  consequence  of  one  would 
be.  But  the  presiding  judge  (Jones,  J.)  denied  a  motion  for  a  non-suit  on  these  grounds,  and 
held  that  the  company  were  bound  as  common  carriers  to  exercise  due  diligence  and  care  in 
the  conduct  of  their  business  without  being  notified  of  the  specific  pecuniary  value  of  any 
dispatch  left  with  them.  They  were  bound  to  infer  that  the  dispatch  was  of  importance  and 
might  be  of  pecuniary  value  to  the  persons  sending  and  receiving  it;  and  the  damages  should 
be  measured  by  the  decline  in  gold  which  made  the  difference  in  the  market  value.  Stras- 
burger  v.  Western  Union  Telegraph  Co. 

"The  draft  of  the  proposed  Civil  Code  in  New  York  proceeds  on  this  view,  and  declares  that 
every  person  who  offers  to  the  public  at  large  to  carry  messages  is  a  common  carrier  as  to 
them.     Draft  of  Civil  Code,  §§  911,  934. 

We  now  turn  to  cases  holding  a  less  rigorous  doctrine.  In  the  case  of  Landsberger  v.  The 
Magnetic  Telegraph  Company,  32  Barb.  530  (1860),  the  plaintiff  at  New  Orleans  having  con- 
tracted with  a  third  person  to  buy  goods  for  him  on  commission  at  New  York,  and  bound 
himself  to  fulfill  the  contract  in  a  specified  sum  as  litjuidated  damages,  remitted  funds  to  New 
York  to  be  used  in  the  agreed  purchase,  which  he  telegraphed  his  agent  in  New  York  to 


CIL    XIII.]  TELEGRAPHS.  411 

make.  The  dispatch  directed  the  plaintiflf's  firm  in  New  York  to  f,'Ct  from  the  Pacific  Mail 
Company  ■f!10,{)U0  which  the  phiintilF  had  remitted  tliitiicr  by  that  company,  l)Ut  did  not  in- 
dicate the  particular  purpose  to  which  it  was  to  be  upjilicd,  in  a  manner  iiitelli<;ihle  to  the 
telejrraph  company.  Throuf^h  the  company's  default,  the  messaf,^c  failed  to  reach  New  York 
in  time  to  have  the  purchase  made,  so  that  the  ])lainti(f  lost  his  commissions  and  the  use  of  his 
money  for  the  time,  and  had  to  \)i\y  the  sti]inlated  damaj^es.  The  court,  intendin;;  to  ajijily 
the  rule  in  lladley  v.  Uaxendale,  9  Kxch.  341,  and  (iriffin  v.  Colvcr,  16  N.  Y.  489  {(inte,  76, 
note  1),  held  that  he  could  recover  only  the  cost  of  the  dis])atch  and  the  interest  of  his  money 
while  it  lay  idle.  The  loss  of  the  commission  atid  the  payment  of  the  liquidated  damages 
wei-e  not  re<rarded  as  having  "  entered  into  the  contemplation  of  the  parties  at  the  time  the 
contract  was  made." 

The  case  turns,  not  on  the  question  of  the  nature  of  the  company's  liahility  as  common 
carriers  or  not,  but  upon  grounds  consistent  with  either  the  more  rigorous  or  the  more  lenient 
rule. 

See  also  Shields  v.  Washington  Telegraph  Company,  9  West.  Law  Joum.  283,  to  a  like 
eflfect. 

In  the  case  of  Bimey  v.  The  New  York  and  Washington  Telegraph  Company  (18  Md. 
341),  it  was  held  that  the  telegraph  company  was  not  a  common  carrier,  and  consetjucntly  not 
an  insurer,  but  simply  a  bailee  performing  through  its  agents  a  work  for  its  emjjjoycr  accord- 
ing to  certain  rules  and  regulations  which  under  the  law  it  has  a  right  to  make  for  its  govern- 
ment. It  is  a  i)arty  contracting  to  perform  a  service  within  the  sjjhere  of  its  business  for  a 
compensation.  If  it  fail  to  perform  the  service,  it  must  account  for  any  loss  or  injury  that 
results  from  its  neglect,  and  such  loss  or  injury  will  be  the  measure  of  damages  to  which  the 
plaintiff  is  entitled.  Rules  and  regulations  by  which  the  companies  announce  that  important 
messages  should  be  repeated,  that  a  certain  additional  charge  will  be  made  for  the  rejjetition, 
that  they  will  not  be  liable  for  any  loss  or  damage  by  reason  of  any  delay  or  mistake  in  the 
transmission  or  delivery  of  unrepeated  messages,  but  engage  only  to  use  reasonable  efforts  to 
secure  the  services  of  competent  employees  so  as  to  have  their  business  transacted  in  good 
faith,  and  also  limit  their  responsibility  on  a  repeated  message  to  a  small  sum  imless  it  be 
insured  at  certain  rates,  were  held  to  be  reasonable,  and  having  been  publicly  posted  in  the 
office  of  the  company,  parties  employing  the  telegraph  were  held  bound  to  know  them.  Such 
regulations,  however,  do  not  exempt  the  company  from  a  responsibility  measured  by  the  rule 
before  given,  for  loss  ensuing  from  its  neglect  to  make  any  effort  to  transmit  the  message. 
The  court  adopted  the  following  language  of  the  company's  counsel  in  reference  to  the  nature 
of  its  obligations  :  "  It  receives  a  written  message  for  transmission.  It  uses  machinery  to 
re])roduce  the  words  of  that  message  at  a  distant  point  either  by  direct  copying  of  the  message 
under  some  alphabetical  system,  or  by  translating  it  into  certain  symbols,  which,  marked  upon 
paper  at  a  distant  point,  are  there  translated  into  our  ordinary  language.  Can  it  be  said  to 
be  even  in  the  nominal  charge  of  the  message  so  transmitted  during  transmission  ?  Not  so. 
It  relies  confessedly  upon  machinery  and  upon  threads  of  communication  which  stretch 
hundreds  of  miles  and  are  liable  at  each  fraction  of  an  inch  to  break,  or  interruption  through 
accident,  influence  of  climate,  wantonness,  or  malice.  These  circumstances  make  it  impossi- 
ble for  the  company  to  remain  in  actual  practical  observation  and  custody  of  its  line." 

And  in  the  late  case  of  Breese  &  Mumford  v.  United  States  Telegraph  Company,  45  Barb. 
(N.  Y.)  274,  it  was  held  that  the  business  of  telegraphing  is  "  radically  and  essentially  differ- 
ent not  oidy  in  its  nature  and  character,  but  in  all  its  methods  and  agencies,  from  the  business 
of  transporting  merchandise  and  material  substances  from  place  to  place  by  a  common  carrier  ; 
that  the  peculiar  and  stringent  rules  by  which  the  latter  is  controlled  and  regulated,  can 
have  very  little  just  and  proper  application  to  the  former ;  and  all  attempts  heretofore  made 
by  courts  to  subject  the  two  kinds  of  business  to  the  same  legal  rules  and  liabilities  will  sooner 
or  later  have  to  be  abandoned  as  clumsy  and  undiscriniinating  efforts  and  contrivances  to 
assimilate  things  which  have  no  natural  relation  or  affinity  whatever,  and  at  best  but  a  loose 
and  mere  fanciful  resemblance."  Similar  conclusions  have  been  very  lately  adopted  by  the 
Supreme  Court  of  Michigan.  The  Western  Union  Telegraph  Co.  v.  Carew,  7  Am.  Law  Reg. 
(N.  S.)  18. 

After  this  retrospect  of  the  cases  in  which  the  question  of  the  measure  of  the  damages  has 
been  too  intimately  blended  with  and  too  dependent  on  that  of  the  nature  of  the  cause  of 
action,  to  permit  the  exclusion  of  the  latter  from  our  consideration,  we  can  better  answer  the 
inquiry,  whether  telegraph  companies  are  to  be  regarded  as  subject  to  the  responsibility  of  com- 
mon carriers.  The  analogy  between  the  undertaking  of  the  two,  notwithstanding  the  strong 
langimge  to  the  contrary  used  in  some  of  the  cases  last  cited,  is  very  obvious.  "  Any  man 
undertaking  to  carry  the  goods  of  all  persons  indifferently  is  a  common  carrier,"  Gisbourn  v. 
Hurst,  1  Salk.  249  ;  and  with  the  substitution  of  the  new  word  "  telegrams  "  for  "  goods,"  the 
same  definition  substantially  describes  the  undertaking  of  the  telegraph  company.  Both  hold 
themselves  out  to  the  public  as  ready  to  deliver  at  a  distant  point  for  a  certain  rate  of  charge 
whatever  may  be  confided  to  them  within  the  scope  of  their  business;  and  the  fact  that  in  the 
one  case  a  parcel  is  to  be  transported,  and  in  the  other  a  message  to  be  transmitted,  does  not 
appear  in  itself  to  afl^ect  the  nature  of  the  obligation.  Nor  does  the  distinction  taken  in  one  of 
the  adjudications,  that  in  the  case  of  the  telegraph  company  the  message  to  be  delivered  is  not 


412  COMMON    CARRIERS.  [CH.    XIII. 

physically  identical  with  that  received,  but  is  a  reproduction  of  it  at  the  place  of  destination, 
seem  to  iis  necessarily  material  to  the  question.  The  messa^^e  as  transmitted  has  doubtless  no 
tangible  properties.  But  it  is  the  identical  idea  of  the  sender  as  exjjresscd  in  words  or  symbols 
which  is  undertaken  to  be  actually  transmitted. 

The  telegraph,  it  is  true,  is  an  agency  so  wonderful  that  the  bald  statement  of  its  doings  still 
seems  to  border  on  fable.  Even  in  the  beginning  of  this  century,  the  feats  of  the  "  encluinted 
horse"  and  "  magical  carpet "  of  the  Eastern  tales  would  have  a])]ieared  at  least  as  feasible 
and  credible  as  its  ordinary  perfonnance  of  to-day.  But  the  marvelousness  of  its  operation  does 
not  strictly  affect  the  ijucstion.  One  agency  of  nature,  indeed,  is  intrinsically  no  more  amazing 
than  any  other,  and  when  we  have  become  reconciled  to  the  fact  that  the  lightning  is 
"  harnessed  "  and  become  our  common  drudge,  there  is  no  difficulty  in  apj)lying  to  transactions 
made  through  its  agency,  the  same  principles  which  were  applicable  when  we  resorted  to  slower 
messengers.  Indeed  where  the  policy  of  the  government  permits  the  conveyance  of  letters  by 
carriers  other  than  its  own  agents,  the  essential  identity  of  the  two  undertakings  becomes 
evident.  Except,  therefore,  in  the  subject-matter  to  which  it  relates,  the  undertaking  of  the 
telegraph  company,  notwithstanding  the  difference  of  the  means  employed,  is  the  same  with 
that  of  the  nearly  obsolete  carrier  by  wagon,  of  the  present  carrier  by  steam,  or  of  the  future 
carrier  by  that  other  vast  force  which  has  hitherto  slumbered  in  the  atmosjjhere  unused  and 
almost  undetected,  and  whicli  as  it  now  seems,  is  beginning  to  be  developed  and  understood 
under  the  agency  known  as  the  "  pneumatic  dispatch." 

There  is,  it  is  true,  in  one  aspect,  a  distinction  between  the  two  which  is  remarked  on  by 
Judge  Daly  in  his  able  dissenting  opinion  in  the  case  of  Biyant  v.  The  American  Telegraph 
Company  (1  Daly,  575),  already  cited.  "In  the  case  of  the  carrier,"  remarks  the  learned 
judge,  "  the  package  or  property  he  is  to  cany  is  placed  in  his  custody.  He  has  for  the  time 
being  exclusive  dominion  and  control  over  it,  and  necessarily  knows,  if  he  fails  to  deliver  it, 
that  the  value  of  it  will  be  lost  to  the  person  who  intrusted  it  to  his  care.  But  those  who 
undertake  to  transmit  intelligence  do  not  necessarily  know  what  may  be  the  effect  if  the  mes- 
sage should  fail  to  I'each  the  person  to  whom  it  is  addressed."  The  difference  in  the  nature  of 
the  two  employments  pointed  out  by  the  learned  judge  certainly  exists.  But  it  must,  as  we  shall 
see,  be  limited  in  its  legal  effect  on  the  measure  of  damages  to  a  certain  class  of  cases,  since  the 
carrier  as  well  as  the  telegrapher  often  does  "  not  necessarily  know  what  may  be  the  effect " 
if  the  subject  of  his  undertaking  "  should  fail  to  reach  the  person  to  whom  it  is  addressed." 

The  essential  distinctions  between  the  two  classes  of  obligations  appear  to  us  to  be  Jirst,  that 
the  business  of  telegraphing  is  one  of  far  more  delicacy,  and  attended  by  much  greater  difficul- 
ties in  its  accurate  discharge  than  that  of  the  carrier,  and  should  not,  therefore,  be  subjected  to 
so  severe  a  degree  of  responsibility.  Second,  That  there  is  inherentl}^  no  valuable  subject  of 
insurance  in  the  contract  for  the  sending  of  an  electric  message,  and  therefore,  as  a  necessary 
consequence,  the  telegraph  company  cannot,  in  a  definite  sense,  and  without  a  special  agree- 
ment, be  held  as  an  insurer. 

The  first  of  these  distinctions  hardly  needs  formal  statement.  A  message  more  or  less 
complex,  often  not  intelligible,  but  written  perhaps  in  figures,  or  if  in  words,  in  words  so  used 
or  so  combined  as  to  convey  no  idea  or  a  false  idea  only  to  the  uninstructed  eyes  of  the  com- 
pany's agent,  is  intrusted  to  him  for  instant  transmission  by  the  subtle  action  of  electricity 
along  a  mere  wire,  either  through  the  air,  which  is  sometimes  charged  with  disturbing  ele- 
ments, or  beneath  the  sea,  to  a  point  which  may  be  beyond  the  route  of  any  single  carrier,  and 
even  in  a  distant  zone  or  another  hemisphere.  In  this  message,  the  mis-spelling  of  a  word,  the 
addition  or  omission  of  a  cipher,  may  so  change  its  sense  as  received,  that  if  the  receiver  acts 
upon  it  as  thus  changed,  a  loss  may  result  from  the  consequent  wrongful  purchase  or  sale  of 
property,  or  the  prosecution  or  abandonment  of  an  undertaking,  which  may  bring  pecuniary 
ruin  on  him  who  bears  it.  In  the  case  of  the  carrier,  however  serious  his  responsibilities,  no 
such  risk  is  incurred.  Again,  as  to  the  second  distinction.  If  the  company  is  an  insurer, 
what  does  it  insure,  and  where  is  the  measure  of  its  liability  in  that  character  ?  No  costly 
package  is  confined  to  its  charge,  the  value  of  which  a  banker  or  a  jeweler  can  determine  at 
a  glance,  and  which  thus  easily  ascertained  becomes  the  measure  of  the  damage  in  case  of  loss. 
The  insurance,  if  such  the  ordinary  contract  for  transmission  be  called,  applies  to  nothing 
substantial,  nothing  intrinsically  valuable,  but  to  a  message  only,  the  non-delivery  or  mis- 
delivery of  which  prima  facie  imports  only  nominal  damages  beyond  the  cost  of  the  dispatch. 
On  the  other  hand,  if  we  leave  this  safe  and  simple  measure  of  damages  —  namely,  the  intrinsic 
value  of  the  subject  of  the  contract  —  the  only  one  indeed  in  tlie  case  of  the  contract  of  carriage 
where  it  is  regarded  as  one  of  insurance,  and  inquire  into  the  consequential  injury  sustained, 
the  measure  of  damages  is  no  longer  one  which  belongs  to  a  contract  of  insurance  as  commonly 
understood,  which  is  simply  one  of  indemnity  against  the  loss  of  the  subject  insured. 

There  is,  as  will  have  been  observed,  some  inconsistency  in  the  language  of  the  bench  on 
this  point,  growing,  as  we  think,  out  of  a  confusion  of  subjects.  A  carrier  is  or  may  be  held 
as  an  insurer,  it  is  true ;  but  it  is  not  in  the  character  of  an  insurer  that  he  is  sued,  where  con- 
sequential damages  instead  of  the  value  of  the  goods  are  sought  to  be  recovered.  He  is  called 
an  insurer  because  his  contract  implies  an  absolute  engagement  to  deliver  the  goods,  unless 
prevented  by  more  than  human  power,  or  by  the  public  enemy,  and  he  is  responsible  for  their 
value  in  case  of  loss,  although  not  chargeable  with  negligence.    But  if  consequential  damages 


CH.    XIII.]  TELEGRAPHS.  413 

arc  souf;ht  for,  his  contract  stands  upon  the  same  grounds  with  other  contracts,  and  in  case  of 
its  breach  the  same  rules  apply  to  it  as  to  tliem. 

As  we  have  had  occasion  to  sec  in  reference  to  carriers  in  the  discussion  of  the  rule  laid  down 
in  the  often  ijuoted  case  of  Iladley  v.  Baxendale,  9  Exch.  .'UI,  antl  -which  furnishes  the  recog- 
nized measure  of  damages  in  actions  of  contract  against  them,  so  far  as  any  definite  measure 
exists,  that  rule  divides  itself  into  two  parts.  First,  the  jiarty  breaking  the  contract  is  liable 
for  such  damages  as  naturally  and  directly  arise  from  the  breach.  This  measure  in  the  case  of 
the  loss  of  a  parcel  is  usually  its  value.  Applied  to  the  case  of  the  telegraph  company,  it 
reduces  the  measure  of  the  recovery  to  the  ])rice  of  the  disjiateh  and  the  ex])eiisc  necessarily 
incident  to  sending  it.  But  by  the  second  branch  of  the  rule,  the  party  breaking  the  contract 
is  liable  for  such  damages  as,  although  not  at  all  or  not  merely  the  natural  or  usual  result  of 
the  breach,  were  such  as  the  parties  had  an  0]ipottunity  to  know  and  should  have  expected 
would  be  the  probable  loss  entailed  by  it  under  the  circumstances  of  the  particular  case.  This 
branch  of  the  rule,  as  ai)i)lied  to  telegraph  companies,  would  inakc  the  measure  of  danuigcs  the 
same  as  in  a  corresponding  action  against  the  carrier.  It  is,  as  we  have  seen,  generally 
applicable  to  breaches  of  contract,  where  the  particular  object  of  one  party  in  making  the  con- 
tract is  known  to  the  other,  and  we  see  no  good  reason  why  it  should  not  apply  to  contracts 
for  the  sending  of  messages  by  telegraph.  And  although  the  person  or  company  engaged  in  the 
business  of  telegraphing  may  not  be  bound  to  know  the  contents  of  a  dispatch,  except  so  far  as 
to  be  responsible  for  mistakes  made  in  transcribing  it,  we  think  the  rule  in  question  apjilies 
even  more  frequently  in  practice  to  their  contracts  than  to  those  of  a  carrier  of  goods.  Mes- 
sages are  generally  sent  by  telegraph  in  order  that  some  particular  thing  may  be  done,  which 
thing  the  reading  of  the  dispatch  even  by  a  person  who  is  not  otherwise  informed  what  it 
relates  to,  in  ordinary  cases  goes  far  to  explain.  But  in  the  case  of  the  carrier,  it  is  not  even 
necessary  that  he  should  know  the  contents  of  a  parcel  in  order  to  fulfill  his  contract  intelli- 
gently, and  the  mere  sight  of  the  goods  is  usually  of  little  use  in  making  him  understand  the 
particular  object  of  the  shipper  in  relation  to  them. 

The  distinction  observed  by  the  learned  judge  in  the  case  of  Byrant  v.  The  American  Tel- 
egraph Company,  applies,  we  think,  therefore,  in  practical  effect,  as  regards  the  measure  of 
damages,  only  to  cases  falling  within  the  first  of  the  two  principles  adopted  in  Hadley  v.  Baxen- 
dale. That  is  to  say,  while  the  carrier  is  in  any  event  liable  for  the  value  of  the  package 
which  he  loses,  whether  he  is  aware  what  it  is  intended  for  or  not,  provided  he  knows  what  he 
is  conveying,  the  telegraj)h  company,  which  has  no  notice  of  the  purpose  intended  by  the  mes- 
sage, is  not  liable  for  the  loss  of  property,  or  other  ill  consequences  entailed  by  the  non-delivery, 
but  only  for  the  cost  of  the  dispatch.  This  difi'erence  results  from  the  fact  that  in  the  one 
case  the  subject  of  transmission  has  not  intrinsic  value,  while  in  the  other  the  subject  of  car- 
riage has.  When,  however,  the  second  principle  (which,  as  we  have  before  observed,  is  usually 
recognized  as  the  rule  characteristic  of  that  case)  applies,  as  in  the  case  of  unjustifiable  delay 
with  knowledge  of  the  probable  effect  of  the  delay,  the  telegraph  company  is  liable  on  the  same 
grounds  with  the  carrier,  and  also  with  any  other  person  who  breaks  his  contract.  But  the 
ditficulty  of  securing  uniform  accuracy  should  make  the  company  responsible  only  for  such 
causes  of  loss  as  are  within  its  control. 

Our  conclusion,  therefore,  is  that  notwithstanding  the  sameness  of  the  telegraph  company's 
obligation,  considered  without  reference  to  its  subject-matter,  with  that  of  the  common  carrier, 
yet  from  the  ditference  of  the  conditions  under  which  this  obligation  is  assumed,  the  legal 
presumption  of  negligence  by  which  the  carrier  is  absolutely  bound,  at  all  events,  in  case  of 
loss,  does  not  apply  to  the  telegraph  company.  But,  as  observed  by  Daly,  First  Judge,  in 
the  case  of  De  liutte  v.  The  New  York,  Albany,  and  Butfalo  Telegraph  Company  (supra), 
as  the  business  of  these  companies  "  is  one  which  leads  to  their  being  intrusted  with  confi- 
dential and  valuable  information,  especially  in  commercial  matters,  there  are  opportunities 
for  fraud  and  abuses  which,  in  view  of  the  relation  rhat  they  occupy  to  the  public,  make  it 
necessary  upon  gi'ounds  of  pulilic  policy  they  should  be  held  to  a  more  strict  accountability 
than  ordinary  bailees."  The  rules  of  damages  should  be  controlled  by  the  circumstances  of  the 
loss,  and  the  principles  we  have  above  considered. 

Special  contracts,  however,  under  which  safety  and  exactness  are  insured  by  the  repetition 
of  the  dispatch,  and  an  additional  sum  is  paid  for  the  repetition,  are  often  made  in  practice ; 
and  where  such  is  the  case,  the  telegraph  company  becomes  liable  for  all  damages  which  are 
the  direct  result,  not  merely  of  its  default  but  of  any  failure  in  the  transmission  (see  Me- 
Andrew  v.  The  Electric  Telegraph  Co.  supra;  Camp  i'.  Western  Union  Tel.  Co.  1  Mete.  (Ky.) 
164  ;  Potts  V.  The  Electric  Tel.  Co.  18  Law  Reporter,  476),  unless  the  damages  are  liquidated 
by  special  agreement.  Such  an  agreement  it  is  doubtless  competent  for  it  to  make,  and  the 
rules  elsewhere  considered  touching  stipulated  damages  then  become  applicable.  (Ch.  16.) 
What  is  necessary  to  constitute  such  an  agreement  does  not  come  within  our  province  further 
to  discuss. 

The  foregoing  considerations  apply  to  actions  by  the  senders  of  messages  which  are  usually 
in  contract,  although  an  action  on  the  case  may  also  be  maintained  by  them.  Where  the  action 
is  brought  by  tlie  person  to  whom  the  message  is  addressed,  as  in  the  case  of  The  New  York 
and  Washington  Printing  Telegraph  Company  v.  Dryburg,  it  is  in  tort,  and  in  that  case  the 


414  COMMON    CARRIERS.  [CH.    XIII. 

company  is  liable  for  the  consetjueiices  of  the  wrong  pursuant  to  the  rules  elsewhere  stated  as 
to  actions  of  tort. 

;  It  has  been  held  that  where  a  contract  is  made  by  telegraph  it  is  not  complete  until  the 
receipt  by  the  party  making  a  j)roposition,  of  notice  of  its  acceptance.  Telegraph  companies 
not  being  like  the  post-office,  a  department  or  agency  of  government,  it  is  said  that  the  deliv- 
ery to  a  telegraph  comjiany  for  transmission  to  a  correspondent  of  a  dispatch  accepting  a 
{)roposition,  has  not  the  legal  effect  of  closing  a  bargain  which  is  the  result  of  the  dejjosit  of  a 
etter  to  a  similar  purport  in  the  post-office  —  a  conclusion  which  is  sought  to  be  further  justi- 
fied by  the  fact  of  the  greater  uncertainty  as  to  the  due  delivery  of  the  reply  in  the  terras 
intended.  Trevor  v.  Wood,  41  Barb.  255.  See  also  Kinghorne  v.  The  Montreal  Telegraph 
Co.  18  U.  C.  60. 

It  would  result  from  this  principle,  if  it  be  sound,  that  the  extent  of  the  telegraph  company's 
liability  must,  in  the  absence  of  an  agreement  otherwise,  be  determined  with  reference  to  the 
condition  of  things  at  and  after  the  receipt  of  the  answer,  and  not  at  the  time  of  sending  it. 

But,  with  great  deference,  we  think  the  liability  in  this  respect  should  be  governed  by  the  ex- 
press or  implied  understanding  of  the  parties,  and  if  by  such  understanding  the  correspondence 
is  to  be  conducted  by  telegraph,  as  woidd  be  usually  implied  on  the  part  of  the  sender,  from  his 
adoption  of  that  mode  of  communication,  the  receiver  of  a  dispatch  should  be  bound  from  the 
time  of  the  delivery  of  his  answer  for  transmission,  whenever  its  terms  are  such  as  to  complete 
the  contract  between  the  parties,  and  the  damages  should  be  determined  accordingly. 

The  latest  decided  case  on  the  subject  of  the  measure  of  damages  in  actions  against  telegraph 
companies,  was  that  of  U.  S.  Telegraph  Co.  u.  Wenger,  55  Penn.  262.  The  message  was  a 
direction  to  buy  stock  at  a  limit  mentioned  in  the  telegram.  The  court  held,  that  as  the  com- 
pany through  gross  negligence  did  not  transmit  the  message  and  the  stock  was  therefore  not 
purchased  till  after  a  delay,  and  the  message  disclosed  to  the  company's  agents  its  nature,  the 
measure  of  damages  was  the  rise  in  price  of  the  stock  between  the  time  when  it  ought  to  have 
arrived  and  the  time  when  the  purchase  was  made. 


CHAPTER  XIV. 

OF  CERTAIN    SPECIAL    CONTRACTS,  AND    OF    THE    COMMON-LAW    ACTION   OP 

COVENANT. 

Cases  of  Contracts  not  considered  in  the  Previous  Chapters.  —  Damages  on 
Agreements  for  Forbearance.  —  Contractors  on  Public  Works.  —  Misappro- 
priation of  Pledges.  —  Cases  examined.  —  Forfeiture  of  Stock  by  Corpora- 
tion. —  Refusal  by  Corporation  to  permit  Transfer  of  Stock.  —  Damages  in 
suits  by  Assignees  of  Bankrupts.  —  Breach  of  Promise  of  Marriage.  —  Action 
of  Covenant.  —  Charter  Parties.  —  Assignments  of  Judgments.  —  Leases. 

We  have  thus  examined  the  measure  of  rehef  in  the  promi- 
nent cases  of  contract,  where  the  damages  are  in  no  way  Hqui- 
dated  by  the  parties.  Before  we  approach  the  consideration 
of  those  cases  where  the  compensation  is  controlled  either  by  a 
penalty  or  a  more  precise  stipulation,  we  have  yet  to  discuss 
the  question  of  Interest,  together  with  some  contracts  not  em- 
braced in  the  foregoing  divisions,  as  well  as  the  measure  of 
damages  in  the  action  of  covenant. 

Reserving  for  the  next  chapter  the  examination  of  the  sub- 
ject of  Interest,  we  shall  here  discuss  some  particular  contracts 
not  included  in  our  previous  classification,  and  shall  then  treat 
of  those  cases  which  are  exclusively  presented  in  the  common- 
law  action  of  Covenant. 

Contracts  for  Forbearance.  —  And  first,  of  contracts  for  for- 
bearance. These  contracts  are  often  entered  into  by  creditors 
for  certain  considerations,  on  which  they  forbear  to  pursue  their 
debtor  during  a  given  time.  In  a  case  of  this  kind  where  the 
plaintiff  had  recovered  judgment  against  his  debtor,  the  defend- 
ant, in  consideration  that  the  plaintift*  would  forbear  to  sue  out 
execution  for  a  certain  time,  agreed  to  erect  a  house  and  lease 
it  to  the  plaintiff;  such  erection  and  lease  to  be  in  full  satisfaction 
of  the  judgment.  The  agreement  not  being  performed,  it  was 
held  that  the  value  of  the  house  was  the  measure  of  damages, 


416  SUITS    BY    CONTRACTORS.  [CH.    XIV. 

and  not  the  difference  between  the  amount  of  the  judg- 
[364]  ment  and  vahie  of  the  house*-' 

Suits  by  Contractors.  —  There  is  another  class  of  cases  of 
not  infrequent  occurrence,  to  which  incidental  reference  has  al- 
ready been  had,t  that  of  contractors,  as  they  are  called,  or  par- 
ties who  undertake  to  construct  public  works  on  a  large  scale, 
such  as  railroads,  canals,  or  government  buildings.  It  appears 
to  be  settled  in  regard  to  this  class  of  agreements,  that  the  con- 
tractor is  entitled  to  recover  the  profits  which  he  has  lost  by  the 
default  of  the  other  party  to  the  undertaking  ;  that  in  estimat- 
ing these  profits,  his  sub-contracts  are  not  to  be  taken  as  evi- 
dence thereof;^  but  that  they  are  to  be  arrived  at  by  taking 
the  market  value  at  the  time  of  the  breach,  and  if  there  be  no 
market  value,  then  by  a  minute  inquiry  into  the  cost  of  ma- 
terials, the  expense  of  transportation,  the  amount  and  value 
of  labor  required ;  and  the  opinions  of  witnesses  will  not  be 
received.t 

*  Strutt  i;.  Farlar,  16  M.  &  Wells,  249.  See  is  the  actual  value  of  what  has  been  done. 

Ellison  V.   Dove,  8   Blackf.    571,   and  supra,  But  the  general  right  to  recover  the  profits 

200.  which  he  would  have  made,  where  he  brings 

I  Ante,  236.  his  action  for  a  breach  of  the  agreement,  was 

t  Masterton  v.  Mayor  of  Brooklyn,  7  Hill,  recognized.  Clark  v.  The  Mayor,  4  Comstock, 

62  ;  Lawrence  v.  Wardwell,  6  Barb.  S.  C.  R.  338  ;  Seaton  v.  Second    Municipality,  3  La. 

423  ;  N.  Y.  &  H.  11.  R.  Co.  v.  Story,  6  Barb.  Ann.  R.  45.     In  Louisiana,  a  contract  made 

S.  C.  R.  419;  Clark  v.  The  Mayor,  3  Barb,  by  a  partnership  as  undertakers  for  the  con- 

S.  C.  R.  288.     This  case  was  reversed  by  the  struction  of  a  railroad  will  be  canceled  by  the 

Court  of  Appeals,  on  the  ground  tliat  when  death  of   any  of   the  parties,  and  the  other 

the  contractor  elects  to  consider  the  contract  contracting  party  is  only  bound  to   pay  the 

as  rescinded,  and  brings  his  action  for  work  value  of  the  work  already  done,  and  that  of 

and   labor  generall}',   he  cannot  recover  for  the  materials  already  prepared,  proportiona- 

profits  on  the  unexecuted  part  of  the  work ;  bly  to  the  price  agreed  on.     McCord  v.  The 

and  that  in  such  a  case  the  rule  of  damages  West  Feliciana  Company,  3  La.  Ann.  R.  285. 

1  The  measure  of  damages  in  contracts  of  sale  may  be  affected  by  the  actual  forbearance  of 
the  vendee  at  the  express  or  implied  request  of  the  vendor,  although  there  is  no  new  contract 
between  tlte  parties.  Thus,  where  the  defendants  had  by  three  bought  and  sold  notes,  con- 
tracted to  sell  the  plaintitf  five  hundi'ed  tons  of  iron,  the  delivery  to  extend  to  July  25,  1865, 
but  delivered  none  up  to  that  time  nor  up  to  February  following,  when  the  plaintiff  bought 
the  iron  in  the  market,  and  the  price  had  then  risen  since  Jwly,  a  recovery  for  the  amount  of 
the  difference  between  the  price  in  February  and  in  the  previous  July  was  sustained.  The 
facts  did  not  show  a  fresh  contract  by  parol  such  as  would  take  the  case  out  of  the  statute  of 
frauds,  but  merely  a  voluntary  waiting  by  the  buyer  at  the  express  or  implied  request  of  the 
seller.  This  operated  so  far  as  to  amount  to  a  postponement  of  the  day  when  the  plaintiff 
might  go  into  the  market,  and  on  which  the  jury  might  calculate  the  measure  of  damages. 
Ogle  V.  Earl  Vane,  2  L.  R.  (Q.  B.)  275  ;  36  L.  J.  R.  (Q.  B.)  175. 

For  breach  of  a  contract  to  stay  execution,  it  is  held  in  Indiana  that  the  measure  of  damages 
is  limited  by  the  amount  forborne  with  interest  and  costs  to  the  sale.  Damages  sustained  by 
a  forced  sale  of  the  property  levied  on  are  too  remote.  Indiana  and  Illinois  Central  Railway 
Company  v.  Scearce,  23  Ind.  223. 

In  such  an  action,  the  true  measure  is  the  value  of  the  plaintiff's  labor,  and  the  profits  he 
could  have  fairly  derived  from  the  labor  he  was  prevented  from  performing.  Cunningham  v. 
Dorsey,  6  Cal.  19. 

^  So  in  an  action  for  breach  of  contract  in  not  furnishing  logs  to  the  plaintiffs  for  the  man- 
ufacture of  lumber,  the  terms  of  the  plaintiffs'  lease  of  the  mill  worked  by  them  and  stopped 
in  consequence  of  the  defendant's  failure  to  furnish  the  logs,  are  immaterial.  Lovcjoy  v.  Mor- 
rison, 10  Minn.  136.  See  Caledonian  R.  Co.  v.  Cole,  3  L.  T.  2b2,ante,  355  ;  also,  Sto'ry  y.The 
New  York  &  Harlem  Radroad  Co.  2  Seld.  (N.  Y.)  85. 


I 


en.   XIV.]  PLEDGES.  417 

Even  with  these  dat<a,  the  estimate  of  profits  must  be  some- 
what conjectural ;  and  in  such  case  it  has  been  said  to  be  the 
duty  of  the  jury  not  to  assess  damages  rigorously,  but  to  mod- 
erate them  so  as  to  make  allowance  for  any  partial  uncertainty 
that  may  exist.* 

AYliere  a  millwright  agreed  to  put  machinery  into  the  plain- 
tiff's mill  in  a  good  and  workmanlike  manner,  and  he  did  it  so 
unskillfully  that  the  same  was  of  little  or  no  value,  and  the 
plaintiff  lost  the  j)rofit  and  benefit  of  his  mill  for  a  long  space  of 
time,  and  was  obliged  to  alter  the  machinery,  it  was  held 
that  the  plaintiff  was  entitled  to  recover  such  additional  [36-5] 
sum,  beyond  the  expense  of  the  repairs,  as  the  mill  would 
have  been  worth  to  him  if  the  defendant  had  fulfilled  his  con- 
tract, more  than  it  was  Avortli  while  the  machinery  was  insuffi- 
cient, and  that  the  opinions  of  witnesses  might  be  received.  I 
suppose  that  in  this  case  the  court  meant  to  give  the  profits  of 
w^orking  the  mill.f  ^ 

Pledges.  —  We  come  next  to  pledges.  Where  an  article  is 
pledged  for  a  specific  object,  and  the  pledgee  misappropriates  it 
in  violation  of  the  agreement,  the  remedy  furnished  by  our  law 
is  either  in  an  action  of  assumpsit  or  covenant,  according  as  the 
engagement  is  sealed  or  unsealed,  or  in  an  action  of  trover.  In 
either  case,  however,  the  question  turns  on  the  true  construction 
of  the  contract.  In  an  early  case  in  New  York,  the  plaintifi"s 
intestate  deposited  with  the  defendant  a  certain  depreciated 
note  on  the  29th  of  April,  1786,  of  the  nominal  value  of  $2,629, 
to  be  delivered  to  the  intestate  on  the  payment  of  $600  and 
interest.  In  1788,  the  defendant  sold  the  note  for  the  best  price 
he  could  get,  leaving  a  small  balance  still  due  him.  In  1791  or 
1792,  the  intestate  died;  and  the  plaintiff  as  his  administrator, 
in  1799,  went  to  the  defendant's  house  to  redeem,  but  was  pre- 
vented by  his  illness  from  seeing  him.  The  Supreme  Court 
held  that  the  defendant's  sale  was  unauthorized,  and  that  the 
rule  of  damages  was  the  value  of  the  certificate  at  the  time  of 
the  application  to  redeem.  It  would  seem  from  the  language 
of  the  opinion,  that  the  note  had  risen  in  value  between  the 
time  of  the  sale  and  that  of  the  application.  It  was  insisted  in 
this  case,  that  the  measure  of  damages  was  a  mere  question  for 

*  Seaton    v.    Second  Municipality,   3    La.         t  Clifford  v.  Kichardson,  18  Verm.  620. 
Ann.  11.  45. 

^  In  an  action  for  breach  of  a  contract  by  which  the  defendant  agreed  to  cidtivate  a  farm  on 
shares,  the  measure  of  damages  is  the  profit  which  the  i)laintiff  would  have  made  if  the  con- 
tract hud  been  fulfilled.     Hoj  v.  Gronoble,  34  Penn.  St.  9. 

27 


418  PLEDGES.  [CH.    XIV. 

the  jury;  but  Kent,  J.,  said:  "In  cases  where  there  is  a  criterion 
for  an  accurate  computation,  that  criterion  must  be  followed, 
and  it  becomes  then  a  rule  of  law.  I  have  no  doubt  the  rule  in 
the  present  case  is  a  rule  of  law,  and  the  only  examination  is  to 
discover  it."*  It  is  a  matter  of  inquiry,  in  a  case  like  this, 
whether  the  measure  of  damages  should  be  the  value  at  the  time 
of  conversion,  which  in  Cortelyou  v.  Lansing  would  have  been 

the  price  realized  at  the  time  of  the  irregular  sale  ;  or  the 
[366]  value  at  the  time  of  the  offer  to  redeem ;  or  yet  again, 

the  value  at  the  time  of  trial.  These  questions  we  have 
already  considered,!  and  we  shall  have  to  examine  them  again 
more  fully  when  we  come  to  treat  of  the  action  of  trover.  In 
the  mean  time  it  may  be  noticed,  that  when  the  mortgagee  of 
real  or  personal  estate  takes  the  thing  pledged  and  sells  it,  or 
finally  converts  it  to  his  own  use,  he  is  held  to  be  paid  so  much 
only  towards  his  debt  as  the  thing  sold  for,  or  was  worth  at  the 
time  of  the  conversion. $  ^  These,  however,  are  not,  like  those 
which  we  are  here  considering,  cases  of  misappropriation. 

In  Massachusetts,  §  where  the  plaintiff  had  pledged  his 
brother's  note  as  security  for  goods  to  the  defendant,  and  the 
goods  being  paid  for,  but  the  note  not  being  delivered  up,  he 
brought  assumpsit  on  the  implied  promise  contained  in  the 
receipt,  the  jury  found  a  verdict  for  the  plaintiff  for  the  full 
amount  of  the  note ;  and  the  Supreme  Court  said,  "  That  though 
they  were  not  bound  to  give  him  the  nominal  amount  of  the 
note,  yet  they  were  at  liberty  to  do  it."  With  deference,  I  do 
not  see  how  the  jury  could  have  been  at  liberty  to  do  other- 

*  Cortelyou  v.  Lansing,  2  C.  C.   in  Error,  t  Ante,  274,  et  seq. 

200  and  215.     In  Barrow  i;.  Paxton,  5  J.  R.  {  Globe  Ins.   Co.  v.  Lansing,  5   Cow.  380; 

2.58,  2G0,  it  is  said  by  Kent,  J.,  that  he  never  Lansing  v.   Goelet,  9  Cow.  346;  Spencer  v. 

delivered  this  opinion ;    but  it   has    been  fre-  Ex'rs   of   Harford,   4    Wend.    381  ;    Case   v. 

quently  recognized  as  law;  Garlick  v.  James,  Boughton,  11  Wend.  106. 

12  J.  K.  146.  §  Thomas  v.  Waterman,  7  Met.  227. 


1  In  an  action  of  assumpsit  in  Pennsylvania,  where  a  debtor  had  conveyed  lands  in  satis- 
faction of  his  indebtedness,  taking  a  verbal  agreement  from  his  grantee,  which  by  the  laws  of 
the  State  was  valid,  that  he  should  have  the  privilege  of  reselling  the  property  within  five 
years  and  all  the  profit  on  the  resale  over  the  amount  of  the  debt,  if  any,  and  before  the  five 
years  had  expired,  gave  notice  to  the  grantee  to  sell,  but  the  latter  had  already  in  good  faith 
sold  for  less  than  the  amount  due  him,  it  was  held  that  the  measure  of  damages  was  not  the 
dilference  between  the  debt  and  the  highest  price  that  might  have  been  obtained  in  the  five 
years,  but  must  be  estimated  by  the  price  that  could  be  had  at  the  time  the  notice  was  given. 
Means  v.  Miliiken,  33  Penn  St.  517.  A  promise  to  subscribe  tor  a  certain  amount  of  stock  in 
a  plank-road  company,  to  induce  the  selection  of  a  particular  route,  if  accepted,  is  valid,  and 
may  be  enforced.  The  measure  of  damages  is  the  difference  between  ,the  value  of  the  stock 
at  the  time  of  the  trial,  and  tlie  amount  agreed  to  be  paid  for  it.  Rhey  v.  Ebensburg  &  Sus- 
quehanna Plank-road  Co.  27  Penn.  St.  261.  On  the  other  hand,  on  a  breach  of  an  agree- 
ment to  give  land  for  stock,  if  a  specific  performance  cannot  be  decreed,  in  estimating  the 
damages,  reference  should  be  had  not  to  the  nominal  value  of  the  stock,  but  to  the  land  which 
ought  to  have  been  conveyed.  Dayton  v.  Hatch,  1  Disney  (Superior  Court  of  Cincinnati), 
R.  84. 


CH.    XIV.]  REFUSAL    TO    TRANSFER    STOCK.  419 

wise,  nor  what  different  criterion  could  have  been  adopted.  It 
was  certain! \'  no  case  for  them  to  exercise  a  vague  discretion. 
The  whole  amount  was  due,  or  nothing.*" 

Actions  against  Stockholders.  —  The  measure  of  damages  in 
actions  brought  by  incorporated  companies  against  stockholders, 
upon  calls  made  for  payment  of  stock,  furnishes  us  w^ith  another 
subject  of  inquiry.  Where  the  defendant  subscribed  for  stock 
which  had  been  forfeited  by  the  company,  it  has  been  held  m 
New  York,  that  the  forfeiture  was  not  a  bar  to  the  action,  but 
that  the  nominal  value  of  the  stock  forfeited,  less  the  actual 
cash  value  at  the  time  it  was  declared  forfeited,  was  the  measure 
of  compensation.!  And  unless  the  value  of  the  stock 
reaches  the  whole  debt  and  interest,t  the  plaintiff  must  [367] 
have  judgment  for  the  balance. 

Refusal  to  Transfer  Stock.  —  The  refusal  of  corporations  to 
permit  transfers  of  their  stock,  presents  another  interesting 
question.  In  New  York,  where  an  action  was  brought  §  upon 
refusal  of  a  bank  to  permit  a  transfer  of  stock  on  its  books,  the 
judge  charged  that  the  rule  of  damages  was  the  highest  price 
that  the  stock  bore  at  any  time  after  the  demand  for  permission 
to  transfer,  and  before  the  commencement  of  the  suit.  The 
defendants  contended  that  the  plaintiffs  should  recover  the 
damages  actually  sustained,  and  which  they  insisted  were  only 
the  excess  of  price  in  the  market  over  the  par  value  which  might 
have  been  realized  upon  a  sale  and  transfer.  But  the  Supreme 
Court  said  :  — 

"  This  assumes  the  plaintiflf  to  be  still  the  owner  of  the  stock.  But  the  defend- 
ants have  denied  this  ownership  altogether.  They  possessed  the  means  of  pre- 
venting its  use  or  enjoyment,  and  if  tlie  plaintiff  should  now  recover  only  his  loss 
occasioned  by  his  inability  to  sell  in  the  market,  the  measure  would  be  obviously 
incomplete.  We  are  not  to  assume,  in  the  absence  of  any  change  of  intention  on 
the  part  of  the  bank,  that  a  second  application  for  a  transfer  would  be  more  suc- 
cessful than  the  first.  Upon  this  limited  measure  of  damages  the  plaintiff  might 
be  kept  in  continual  litigation  at  the  volition  of  the  defendants,  or  be  driven  to 
abandon  his  property." 

This  case  was  carried  up  to  the  Court  of  Errors,  where  the 

*  In  Massachusetts,  Jarvis   v.   Rogers,   15  t  Herkimer  Man.  Co.  v.  Small,  21    Wend. 

Mass.  389,  presents  an  interesting  decision  as  273. 

to  the  measure  of  damages  in  the  case  of  mis-  J  S.  C.  2  Hill,  127. 

appropriation  of  pledges.     See  it  cited  with  §  Kortright  v.  Buffalo   Commercial  Bank, 

approbation  in  Stearns  v.  Marsh,  4  Denio,  227. ^  20  Wend.  91. 

1  See  also,  Johnson  v.  Stear,  15  C.  B.  (N.  S.)  330. 


420  SUITS    BY    ASSIGNEES    OF    BANKRUPTS.  [CH.    XIV. 

judgment  was  affirmed,  with  an  intimation  that,  perhaps  the 
damages  should  have  inchided  the  highest  price  to  the  day  of 
trial.*  ^  In  England  the  rule  would  appear  the  same.  In  an 
early  case,  a  mandamus  to  compel  the  bank  to  transfer  stock 
was  refused  by  Lord  Mansfield,  on  the  ground  that  an  action 
would  lie  for  complete  satisfaction  equivalent  to  specific  relieff 
In  Massachusetts  also,  it  has  been  held  that  the  value  of  the 
stock  at  the  time  of  the  demand  and  refusal  to  transfer,  is  the 
true  measure  of  damages.J^     The  rule  in  Massachusetts^  and  in 

New  York  is  the  same  ;  but  it  is  proper  to  notice  that, 
[368]  in  the  one  State,  the  analogy  between  the   measure  of 

compensation  in  this  case  and  in  the  action  of  trover  is 
preserved  ;  while  in  the  other  the  analogy  of  the  rule  which  we 
have  already  noticed,^  that  in  sales  of  chattels  where  the  prop- 
erty is  paid  for,  the  highest  value  after  the  time  of  trial  shall  be 
given  is  entirely  disregarded.  This  principle  is  based  upon  the 
idea  that  the  property  of  the  plaintiff  is  placed  beyond  his  con- 
trol by  the  act  of  the  defendant;  and  the  refusal  to  permit  a 
transfer  of  stock  presents  a  very  similar  state  of  things  in  this 
respect.^ 

Suits  by  Assignees  of  Bankrupts.  —  Interesting  questions  are 
often  presented  in  suits  by  assignees  seeking  to  enforce  con- 
tracts made  by  the  bankrupt.  In  a  case  in  assumpsit  in  the 
English  Exchequer,  the  facts  were  that  the  bankrupt  had,  pre- 
vious to  his  bankruptcy,  delivered  to  the  defendant  a  bill  of  ex- 
change for  <£600,  which  he  promised  to  discount,  retaining  <£100 
and  the  discount.  He  kept  the  bill,  however,  and  paid  nothing 
to  the  bankrupt.  On  tliis  state  of  facts,  the  judge  who  tried 
the  cause  told  the  jury  that  they  were  bound  to  give  the  £600, 
less  the  £100  and  the  discount.  An  effort  was  made  to  set  the 
verdict  aside,  on  the  ground  that  the  cause  should  have  been 
left  to   the  jury  at  large,  and  that  the  judge   erred  in  telling 

*  The  chancellor,  however,  delivered  a  dis-  t  The  King  i'.  The  Bank  of  England,  Doug- 
senting  opinion,  both  as  to  the  right  of  the    lass,  524. 

plaintiff  and  as  to  the  measure  of  damages.         |  Gray  v.  Portland  Bank,  3  Mass.  R.  364; 
Conini.  Bank  of  Buffalo  u.  Kortright,  22  Wend.     Sargent  v.  Franklin  Ins.  Co.  8  Pick.  90. 
348.  §  Ante,  279. 

1  So  Arnold  v.  Suffolk  Bank,  27  Barb.  424. 

^  So  in  Pennsylvania,  The  German  Union  Building  and  Saving  Fund  Association  v. 
Sendmeyer,  50  Penn.  St.  (14  Wright)  67.  And  in  New  Hampshire,  Pinkerton  i'.  Manches- 
ter and  Lawrence  Railroad,  42  N.  H.  424. 

'^  Eastern  R.  R.  Co.  v.  Levi  Benedict,  10  Gray,  212. 

*  Eijuity  always  gives  the  largest  measure,  when  its  powers  are  properly  invoked  on  the 
ground  of  fraud  or  breach  of  trust.  A  party  liable  to  account  for  stock,  is  chargeable  with 
the  highest  market  price  on  his  refusal  to  account.  Reitenbaugh  v.  Ludwick,  sl  Peun.  St. 
131. 


CII.    XIV.]  BREACH    OF   PROMISE    OF    MARRIAGE.  421 

them,  as  a  point  of  laiv,  that  the  sum  above  stated  was  the  meas- 
ure of  damages.  But  the  charge  was  held  right,  aud  the  court 
said,  "  No  doubt  all  questions  of  damage  are,  strictly  speaking, 
for  the  jury,  and  however  clear  and  plain  may  be  the  rule  of 
law  on  which  the  damages  are  to  be  found,  the  act  of  finding  is 
for  them.  But  there  are  certain  established  rules  according  to 
which  thc}^  ought  to  find  ;  and  here  there  is  a  clear  rule,  that 
the  amount  which  would  have  been  received  if  the  contract  hi^i 
been  kept  is  the  measure  of  damages  if  the  contract  is  broken."  *  ^ 
The  decision  is  important,  as  being  one  of  that  large  class  of  cases 
in  which  the  modern  determination  of  the  courts  to  reduce  the 
subject  of  damages  to  settled  rules  is  most  distinctly  visible.^ 

Breach  of  Promise.  —  The  action  for  breach  of  promise  of 
marriage,  as  has  been  already  said,t  though  nominally  an  action 
founded  on  the  breach  of  an  agreement,  presents  a  strik- 
ing exception  to  the  general  rules  which  govern  contracts.  [369] 
This  action  is  given  as  an  indemnity  to  the  injured  party 
for  the  loss  she  has  sustained,  and  has  been  always  held  to 
embrace  the  injury  to  the  feelings,  affections,  and  wounded 
pride,  as  well  as  the  loss  of  marriage.t  ^  From  the  nature  of 
the  case,  it  has  been  found  impossible  to  fix  the  amount  of  com- 
pensation by  any  precise  rule  ;  and,  as  in  tort,  the  measure  of 
damages  is  a  question  for  the  sound  discretion  of  the  jury  in 
each  particular  instance,§  subject,  of  course,  to  the  general  re- 

*  Alder  v.  Kcighley,  15  M.  &  Wels.  117.  %  Wells  v.  Padgett,  8  Barb.  S.  C.  R.  323. 

t  Ante,  219.  §  Southard  v.  Kexford,  6  Cowen,  254. 

1  The  equitable  assignee  in  this  class  of  cases  has  no  greater  right  than  the  plaintiiFs  in  the 
record.  Val])y  v.  Oakelev,  16  Q.  B.  941  ;  Griffiths  v.  Peny,  1  E.  &  E.  680;  Porter  v.  Vorley,  9 
Bing.  93,  95.     See  also,  Hill  v.  Smith,  12  M.  &  W.  618. 

-  In  an  action  for  a  false  representation  by  wliicli  the  plaintiff  was  alleged  to  have  been  com- 
pelled to  pay  £2,000  and  thercliy  became  bankrupt  and  suffered  great  annoyance  and  incon- 
venience, the  only  damage  recoverable  was  the  direct  pecuniary  loss,  the  right  to  which  passed 
to  the  assignees.  Hodgson  i'.  Sidney,  1  L.  li.  Exch.  313.  AVhere  property  has  been  wrong- 
fully taken,  in  an  action  by  the  general  assignee  of  the  owner  for  the  conversion,  the  fact  that  it 
was  taken  from  the  defendant  by  attachments  in  favor  of  the  creditors  does  not  defeat  the 
action.  But  the  proceeds  of  the  sale  under  the  attachments  are  a  defense  pro  tanto.  If,  how- 
ever, the  jjroperty  was  sold  for  much  less  than  its  real  value,  the  defendant  being  tlie  wrong- 
doer must  suffer  the  depreciation.  The  measure  of  damages  is  the  actual  value  at  the  time  of 
tiic  taking,  less  the  amount  produced  at  the  sale.  Ward  v.  Benson,  31  How.  Pr.  11.  (N.  Y.) 
411.  Where  the  assignor  of  the  plaintiff  owed  her  $500,  for  which  she  held  his  note,  and  he 
as.signed  her  in  good  faith  property  to  the  amount  of  $900,  taking  up  his  note,  she  agreeing 
that  after  collecting  enough  to  pay  it  she  would  apply  the  balance  in  payment  of  two  other 
creditors  of  the  assignor,  and  if  anything  remained  after  that  distribute  it  among  the  remaining 
creditors,  and  the  defendants  as  attaching  creditors  took  the  assigned  property,  it  was  held  that 
the  plaintiff  was  entitled  to  recover  the  full  amount  of  tlie  property  instead  of  the  amount  of 
the  assignor's  debt  to  her  only.  Kobbins  v.  Fitz,  33  N.  Y.  420.  In  an  action  by  assignees 
in  insolvency  to  recover  the  value  of  goods  consigned,  in  violation  of  the  statute  against  ft-and- 
uleut  preferences,  by  their  insolvent  to  one  of  his  creditors,  the  measure  of  damages  is  the  value 
of  the  goods  at  the  time  when  the  preference  was  made.     Burpee  v.  Sparhawk,  97  Mass.  342. 

3  Tobin  V.  Shaw,  45  Maine,  348. 


422  BREACH    OF    PROMISE    OF    MARRIAGE.  [CH.    XIV. 

striction  that  a  verdict  influenced  by  prejudice,  passion,  or  cor- 
ruption, will  not  be  allowed  to  stand.-' 

Beyond  this  the  power  of  the  court  is  limited,  as  in  cases  of 
tort,  almost  exclusively  to  questions  arising  on  the  admissibility 
of  evidence  when  ofl'ered  by  way  of  enhancing  or  mitigating 
damages.'"^  So  where  it  appears  that  the  promise  w^as  made  by 
the  defendant  with  a  view  to  seduce  the  plaintiff,  and  that  the 
defendant  thereby  did  in  fact  seduce  the  plaintiff,  this  will  be 
allowed  to  go  to  the  jury  in  aggravation.*  ^ 

*  Paul  V.  Frazer,  3  Mass.  7.3  ;  Green  v.  Pennsylvania  ;  Weaver  v.  Bachert,  2  Barr,  80. 
Spencer,  3  Mo.  22.5  ;  Hill  v.  Maupin,  Ibid.  323  ;  But  there  the  improper,  cruel,  and  indecent  con- 
Burks  V.  Shain,  2  Bibb,  341  ;  Whalen  v.  Lay-  duct  of  the  defendant  will  go  to  aggravate 
man,  2  Blackf.  194 ;  Wells  v.  Padgett,  8  Barb,  the  damages.  Baldy  v.  Stratton,  11  Penn.  R. 
S.  C.  R.  323.     The  contrary  has  been  held  in  316. 


1  The  court  will  not,  therefore,  set  aside  the  verdict  on  the  ground  of  excessive  damages, 
even  if  they  think  the  amount  "  entirely  disproportionate  "  to  the  case  made  by  the  proof. 
Goodall  V.  Thurman,  1  Head  (Tenn.),  209. 

^  It  was  held  by  a  majority  of  the  New  York  Court  of  Appeals  that  the  defendant  might 
show  in  mitigation  in  this  action,  that  the  breach  proceeded  from  no  change  of  feeling  on  his 
part,  but  was  in  deference  to  the  wishes  of  his  mother,  a  woman  in  infirm  health.  Johnson  v. 
Jenkins,  24  N.  Y.  252.  But  such  evidence  must  i)e  taken  merely  as  tending  to  reduce  the 
standard  to  compensatory,  and  to  exclude  exemplary  damages.  The  plaintiti'  cannot  be  the 
less  entitled  to  compensation  for  the  injury  sustained,  because  of  the  circumstances  which  pal- 
liate the  defendant's  conduct. 

The  jury  may  take  into  account  the  plaintiff's  altered  social  position  in  consequence  of  the 
defendant's  misconduct.  BeiTy  v.  Dacosta,  1  L.  R.  C.  P.  331.  See  Smith  v.  Woodfine,  1  C. 
B.  660,  where  the  cases  are  reviewed  and  the  remarks  of  the  author  here  and  at  page  210,  are 
cited  bv  Mr.  Justice  Willes  with  approbation. 

3  Kniffen  v.  McConnell,  30  N.  Y.  285  ;  Burnett  v.  Simpkins,  24  111.  264  ;  Wells  v.  Padgett, 
8  Barb.  (N.  Y.)  323  ;  King  v.  Kersey,  2  Ind.  492  ;  Tubbs  v.  Van  Kleek,  12  111.  446  ;  Coil  v. 
Wallace,  4  Zabr.  (N.  J.)  291  ;  Roper  v.  Clay,  18  Mo.  383  ;  White  i;.  Campbell,  13  Gratt.  ( Va.) 
573.  But  to  aggravate  the  damages,  the  seduction  must  be  effected  by  means  of  the  promise. 
Espy  V.  Jones,  1  Ala.  454. 

But  the  ride  observed  in  many  of  the  States  in  actions  of  libel  applies  here,  and  if  a  plea 
of  justification  is  interposed  and  fails,  it  will  go  in  aggravation  of  the  damages.  Davis  v. 
Slagle,  27  Mo.  (6  Jones)  600.  This  is  on  the  ground  that  the  justification  is  placed  on  the 
record,  and  will  remain  there  as  a  continual  reiteration  of  the  charge  against  the  plaintiff, 
and  that  therefore  "  a  trifling  verdict  would  not  show  that  such  charge  was  unfounded." 
Kniffen  v.  McConnell,  30  N.  Y.  285.  And  in  New  York  it  has  lately  been  held  by  the  court 
of  last  resort,  that  although  justification  on  this  ground  be  not  pleaded,  the  unsuccessful 
attempt  of  the  defendant  to  prove  in  mitigation  the  plaintiff 's  misconduct  with  other  men, 
aggravates  the  damages.  Ibid.  In  the  charge  of  the  judge  at  Nisi  Prius  in  this  case,  which 
was  sustained  on  the  appeal,  he  instructed  the  jury  that  if  the  defendant  had  attempted  to 
prove  the  plaintiff  guilty  of  misconduct  with  other  men,  of  which  he  hieio  she  was  not  guilty,  it 
aggravated  the  damages.  This  language  by  itself  might  perhaps  in  effect  be  justified  within 
the  rule  of  exemplary  damages,  which  is  sufficiently  flexible  and  comprehensive  to  admit  the 
consideration  of  all  circumstances  showing  the  animus  of  the  defendant,  although  in  cases 
proper  for  such  damages  the  jury  should  be  permitted  only,  not  instructed  to  find  them.  But 
the  attempt,  at  least  beyond  established  precedents,  to  exploi'e  the  motives  of  a  defense  with  a 
view  to  affecting  the  amount  of  the  verdict,  seems  to  us  very  dangerous.  In  this  case  the  judge 
refused  to  charge  that  "  unless  the  jury  were  fully  satisfied  that  the  defendant  was  the  father 
of  the  child  with  which  the  plaintifi'was  pregnant,  they  must  find  for  the  defendant,"  and 
the  evidence,  as  reported,  seemed  at  least  to  justify  the  defendant  in  an  honest  belief  in  the 
plaintiff's  misconduct  with  other  men.  Whether  the  verdict  (which  as  rendered,  even  exceeded 
the  amount  claimed,  though  the  plaintiff  waived  the  excess)  was  right  or  not,  we  cannot  think 
due  legal  precautions  were  taken  to  make  it  so.  The  case  is  regarded  by  Mr.  Justice  Ingra- 
ham,  who  pronounced  the  opinion  of  the  court,  although  dissenting  from  the  particular  con- 
clusion now  under  consideration,  as  carrying  the  principle  to  an  unreasonable  and  unwarrant- 
able extent.  "  It  is  an  anomaly  in  an  action  for  a  breach  of  contract,"  says  that  learned 
judge,  "  to  hold  that  setting  up  matters  to  excuse  such  breach  in  an  answer,  the  proof  of  which 


CH.    XIV.]  BREACH    OF   PROMISE   OF   MARRIAGE.  423 

So  also,  it  is  held  that  the  defendant  may  show  in  mitigation 
of  damages,  the  licentious  conduct  of  the  plaintilf,  and  her 
general  character  as  to  sobriety  or  virtue,  without  any  limita- 
tion of  time  whatever.*  ^ 

It  is  also  settled  that,  in  this  action,  dissolute  conduct  on  the 
part  of  the  female  after  the  promise  (or  before  if  unknown), 
discharges  the  contract  altogether.  Indecent  conduct  before  the 
promise,  if  unknown  to  the  defendant,  or  after  the  promise, 
goes  in  mitigation  of  damages.!  ^  No  evidence  can  be  given  of 
any  fact  having  a  tendency  to  aggravate  the  damages,  which 
has  occurred  after  the  commencement  of  the  suit.  So  in  an 
action  for  breach  of  promise,  an  indecent  and  insulting  letter 

*  Johnston  v.  Caulkins,  1  J.  C.  116.  drews,    7    Wend.  142;    Irving  v.  Greenwood, 

t  Boynton  v.  Kt-llos,  3  Muss.  189;  Wil-  1  C.  &  P.  350;  Caijeliart  v.  Carradine,  4 
lard  V.  Stone,  7  Cowcii,  22  ;    Palmer  v.   An-     Strobhart,  42. 

fails,  is  an  airjrravation  of  the  damages,"  and  he  thinks  the  rnle  should  at  least  go  no  further. 
With  great  dot'erence  to  the  opinion  of  the  majority  of  the  court,  we  venture  to  think  so  too. 
Even  a  justification  in  the  answer  not  made  out  by  the  proof,  may  have  been  in  good  faith, 
and  although  the  charge  continues  on  the  record,  it  is  always  neutralized  by  a  verdic.t  for  the 
plaintirt",  which,  if  small  in  amonnt,  may  have  been  so  for  the  very  reason  that  the  jury  were 
inclined  to  attach  some  credence  to  the  defendant's  charges.  That  such  a  justification,  if 
unsuccessful,  should  increase  the  damages,  should  seem  hard  enough.  But  if  the  defendant 
takes  the  onus  of  the  breach  of  the  contract  upon  himself  in  his  plea,  it  would  seem  unrea- 
sonable that  he  should  be  debarred  from  proving  what  led  him  to  change  his  mind  by  the 
fear  of  a  very  heavy  verdict  against  him  in  case  the  evidence  should  fail  to  produce,  on  the 
calmer  apprehension  of  the  jury,  the  same  efix3ct  that  it  had  on  his  own  interested  and  sensi- 
tive judgment.  "  It  was  proved,"  says  the  report  of  the  case  in  question,  that  the  plaintiff 
had  "  invited  young  men  into  her  room;"  ....  that  in  September,  183.5,  she  "spent 
the  night  at  a  tavern  with  a  young  man  other  than  the  defendant,  and  that  they  lodged 
together ;  and  a  similar  occurrence  in  July  or  August,  1854,"  was  also  in  evidence.  Without 
the  least  design  to  do  injustice,  many  men  not  on  the  jury  in  this  case,  might  by  evidence  of 
this  kind  be  both  reasonably  and  honestly  deterred  from  fulfilling  a  contract  of  marriage,  the 
inducements  to  which  seem  to  have  been  so  greatly  diminished.  In  such  a  case  the  rule  of 
exemplary  damages,  which  as  we  have  said  would  give  the  jury  ample  power  to  punish  a  clearly 
dishonest  attempt  to  injure  a  plaintiff's  character  under  the  pretense  of  justification,  should 
seem  sufficient  for  the  plaintiff's  protection.     See  post,  541. 

In  Iowa  the  damages  are  enhanced  or  unaffected  in  such  a  case,  according  as  the  justification 
is  or  is  not  pleaded  in  good  faith.  Denslow  v.  Van  Horn,  16  Iowa,  476.  And  such  is  the  rule 
in  several  of  the  States  of  the  Union. 

1  So  also  the  plaintiff's  breach  of  the  criminal  law  by  profanity,  is  said  to  go  in  mitigation. 
Berry  v.  Bakeman,  44  Me.  164. 

-  So  the  fact  of  a  female  plaintiff's  having  had  an  illegitimate  child,  if  known  to  the  defend- 
ant at  the  time  of  the  jiromisc,  is  no  defense  to  the  action  but  goes  in  mitigation.  Denslow  v. 
Van  Horn,  16  Iowa,  476.  So  in  Illinois,  the  woman's  connection  with  another  man  than  the 
defendant  before  as  well  as  after  the  promise,  although  the  engagement  was  formed  or  contin- 
ued by  the  defiendant  with  knowledge  of  her  shame,  goes  in  mitigation  of  the  damages,  on 
the  ground  that  an  unchaste  woman  cannot  be  injured  by  a  breach  of  the  marriage  promise 
to  the  same  extent  with  a  virtuous  one.  Burnett  v.  Simpkins,  24  111.  264.  So  far,  however, 
as  the  damages  are  a  pecuniary  compensation  for  the  loss  of  an  advantageous  match,  the  meas- 
ure should  not  be  atl'ectcd  by  j)revious  misconduct  of  the  woman  which  had  been  forgiven  by 
the  defendant.  Indeed,  as  a  matter  of  dollars  and  cents,  a  reputable  woman's  loss  would  per- 
haps not  be  so  great  as  that  of  one  whose  reputation  is  tarnished,  as  it  would  generally  be  more 
easily  supplied.  Perhaps,  moreover,  as  regards  other  damages,  the  loss  of  the  opportunity  of 
retrieving  her  name,  anil  reassuming  a  position  of  respectability,  is  an  injury  practically  equiv- 
alent to  the  keener  mortification  which  a  virtuous  woman  may  be  thought  to  sustain  from  a 
suitor's  faithlessness.  In  the  case,  however,  of  the  continuance  of  the  woman's  degradation, 
if  such  continuance  be  without  the  suitor's  knowledge,  she  is  entitled  to  nothing,  and  if  with 
his  acquiescence,  to  nominal  damages  only,  both  on  the  ground  of  her  misconduct,  and  because 
the  loss  of  a  husband  who  has  connived  at  his  wife's  shame  inflicts  no  damage. 


424  HIRE    OF    SLAVES.  [CH.    XIV. 

[370]  written  by  defendant  to   the  plaintiff  after  suit  brought 
cannot  be  proved  * 

Hire  of  Slaves.  —  In  regard  to  the  hire  of  slaves,  it  has  been 
held  in  Arkansas,  as  the  value  of  slave  hire  fluctuates,  that  in 
an  action  for  the  hire  of  slaves  for  one  year  it  is  erroneous  to 
instruct  the  jury  that  what  the  defendant  paid  the  year  pre- 
vious is  the  correct  criterion  of  their  value,  and  that  what  such 
slaves  hired  for  during  the  year  in  controversy  would  be  the 
measure  of  relief  f  ^  Where  slaves  are  hired  for  a  specific  time 
and  die  within  the  period,  but  without  fault  of  the  hirer,  the 
better  opinion  seems  to  be  that  the  hirer  is  only  liable  for  the 
time  up  to  the  negro's  death,t  though  a  contrary  opinion  has 
been  in  one  case  intimated.^ 

The  Common-Law  Action  of  Covenant.  —  Having  thus  consid- 
ered various  cases  belonging  to  the  great  action  of  assumpsit, 
we  now  turn  to  others  which  are  embraced  in  that  of  covenant. 
This  is  the  remedy  provided  by  our  ancient  jurisprudence  for 
the  recovery  of  damages  upon  the  breach  of  a  covenant,  or  con- 
tract under  seal.  The  addition  of  a  seal  to  the  signature  of  the 
contracting  parties  is  pregnant  with  important  consequences, 
both  in  regard  to  the  form  of  the  action,  and  in  many  instances 
to  the   substantial  rights  of  the  parties ;  but  it  has  no  effect 

*  Greenlcaf  v.   McColley,    14  N.   H.   304.  t  Adamson  v.  Adamson,  4  English,  26. 

But  in  seduction,  where  the  child  was  born  {  In  Virginia,  George  v.  Elliott,  2  Hen.  & 

after   the   action   was    commenced,    damages  Munf.    5.     In   North   Carolina,   Williams   v. 

were  given  for  the  expense  consequent  thereon.  Holcomb,  1  N.  C.  L.  E.  365.     In  South  Caro- 

Stiles  V.  Tilford,  10  Wend.  338.     In  the  one  lina,  Bacot  v.  Parnell,  2  Bailey,  424 ;  and  in 

case,  however,  the  court  took  into  view  what  Arkansas,    Collins   v.   Woodruff,   4    English, 

was  the  dii'ect  and  natural  result  of  the  ille-  463.     But  in   Kentucky,   they  have  held   the 

gal  act.     In  the  other  it  excluded  the  consid-  owner  liable  for  the  whole  term.     Harrison  v. 

eration   of  a  new   tort   wholly   distinct   and  MurrcU,    5   Mon.   359  ;    Redding  i'.    Hall,  1 

independent  from  the  original  cause  of  action.  Bibb,  536. 

1  For  breach  of  covenant  in  not  teaching  a  slave  a  trade,  the  measure  of  damages  is  not  the 
cost  of  the  instruction,  but  the  difference  between  his  value  with  and  without  it.  Bell  v. 
Walker,  5  Jones,  Law  (N.  C),  43. 

'^  The  principle  as  to  the  right  and  measure  of  recovery  in  the  species  of  bailment  known  as 
Locatio  rei,  to  which  the  hiring  mentioned  in  the  text  belongs,  is  this.  The  bailee  is  bound  to 
ordinary  care  of  the  property  bailed  having  reference  to  its  nature  and  to  the  circumstances. 
When  the  contract  of  bailment  is  violated  and  the  property  is  damaged,  it  is  prima  facie  an 
injury  for  which  the  bailee  is  liable  to  the  extent  of  the  value  of  the  thing  bailed.  Being  in 
the  wrong,  it  is  for  him  to  relieve  himself  in  respect  to  the  actual  loss,  by  proving  that  it  could 
not  have  been  the  result  of  the  want  of  that  care  which  the  contract  required.  Thus,  where 
the  hirer  of  a  slave  agreed  Avith  the  owner  that  he  should  work  all  the  time  under  the  eye  of  a 
white  overseer,  which  was  not  done,  and  the  slave,  while  working  with  other  slaves,  and 
without  a  white  overseer,  was  killed  in  some  unexplained  way,  it  was  held  that  the  hirer,  in 
the  absence  of  proof  that  the  presence  of  the  white  overseer  would  have  had  no  effect  in 
regard  to  his  death,  was  lialile  for  his  value.  Knox  v.  North  Carolina  R.  R.  Co.  6  Jones,  Law 
(N.  C),  415.  Where  the  hirer  of  the  slave,  by  cruel  treatment,  caused  him  to  run  away,  in 
consequence  of  which  he  perished,  the  hirer  was  held  responsible  for  his  value  and  for  his  hire 
during  the  term  of  his  engagement,  with  interest  up  to  the  commencement  of  the  suit. 
Robinson  v.  Varnell,  16  Texas,  382. 


CH.    XIV.]  ASSIGxNMENTS    OF    JUDGMENT.  425 

whatever  on  the  rule  of  damages,  except  in  regard  to  that  class 
of  cases  embracing  real  covenants,  which  we  have  already  con- 
sidered. If  the  contract  relate  to  personal  property,  the  meas- 
ure of  damages  is  the  same  whether  it  be  sealed  or  unsealed, 
and,  consequently,  whether  the  remedy  be  by  covenant  or  as- 
sumpsit. 

The  questions,  therefore,  that  present  themselves  in  actions 
of  covenant,  are  usually  identical  with  those  which  we  have 
been  considering  in  assumpsit.  There  are  cases,  however, 
coming  up  in  this  form  of  action,  which  cannot  arise  [371] 
in  any  other,  inasmuch  as  the  instruments  out  of  which 
they  grow  are  always  executed  under  seal.^  Such  are  assign- 
ments of  judgments,  charter-parties,  and  leases  for  terms  of 
years.^ 

Assignments  of  Judgment.  —  In  the  case  of  an  assignment  of 
a  judgment  containing  a  warranty  that  the  sum  specified  re- 
mained due  and  unpaid,  when  in  fact  no  judgment  had  ever 
been  entered  up,  the  Supreme  Court  of  New  York  held,  in  an 
action  of  covenant,  that  the  measure  of  damages  was  not  the 
amount  recovered  as  stated  in  the  assignment  of  the  judgment, 
but  the  amount  of  property  owned  by  the  judgment  delator, 
and  which  might  have  been  taken  in  execution  intermediate 
the  time  of  assignment  and  the  commencement  of  the  suit.* 
It  is  worthy  of  notice  here,  that  the  amount  of  consideration  or 
value  paid  did  not  appear  on  the  face  of  the  assignment,  and 
that  it  is  not  stated  in  the  report  whether  the  evidence  in  re- 
gard to  the  amount  of  property  owned  by  the  alleged  judg- 
ment debtor  came  from  the  plaintiff  or  defendant ;  although,  as 
the  declaration  is  stated  to  have  averred  that  the  plaintiff  had 
property  enough  to  satisfy  the  demand,  the  pleader  seems  to 
have  thought  that,  regularly,  it  should  have  come  from  the 
plaintiff  It  would  seem  that,  prima  facie,  either  the  amount 
appearing  to  have  been  paid  for  the  judgment,  or  the  amount 

*  Jansen  v.  Ball,  6  Cow.  628. 

1  In  a  grant  of  land  there  was  a  covenant  that  the  defendants  should  sink  upon  the  de- 
mised premises  a  pit  to  the  depth  of  130  yards  in  search  of  coal,  and,  in  case  a  marketable 
vein  should  be  reached,  pay  the  plaintiff  .£2,500.  In  an  action  by  the  plaintiff  for  breach  of 
this  covenant,  evidence  being  given  to  show  that  if  the  defendants  had  sunk  the  pit,  market- 
able coal  might  have  been  found,  it  was  held,  that  the  plaintiff  was  entitled  to  more  than 
nominal  danuiges,  and  that  the  true  measure  of  damage  was  the  amount  which  he  had  lost  by- 
being  deprived  of  the  opportunity  of  finding  marketable  coal.  Pell  v.  Shearman,  32  Eng.  L. 
&  E."496. 

See  the  measure  of  damages  under  the  Mexican  laws,  in  case  of  breach  of  covenant,  stated 
in  Garrett  v.  Gaines,  6  Tex.  435. 

2  No  damages  are  recoverable  in  scire  facias  for  delay  of  an  execution.  Vredenburgh  v. 
Snyder,  6  Iowa,  39. 


426  CHARTER-PARTIES. LEASES.  [CH.    XIV. 

recovered  by  it,  should  be  the  measure  of  damages.  If  the 
analogy  of  conveyances  of  real  estate  were  followed,  then  the 
consideration  paid  would  govern.  If  the  assignment  were 
treated  as  a  chattel,  then  the  price  paid  would  again  be  the 
rule,  subject  to  the  plaintiff's  right  to  show  that  the  whole 
amount  could  have  been  recovered,  and  then  for  its  value  be- 
yond the  price  ;  and  also  subject  to  the  further  right  of  the 
defendant  to  show  that,  owing  to  the  judgment  debtor's  insol- 
vency, it  was  worthless.  If  the  analogy  in  the  case  of  sheriffs 
were  adopted,  then  the  amount  recovered  by  the  judgment 
would  be  the  piimd  facie  measure,  subject  to  the  defendant's 
right  to  reduce  the  sum  by  showing  that,  owing  to  the  judg- 
ment debtor's  circumstances,  its  whole  amount  could  not  be 
collected.     I  make  these  remarks  as  serving;  to  illustrate  the 

contradictions  and  perplexity  that  pervade  the  whole 
[372]  subject;  indeed,  we  are  sometimes  induced  to  say,  with 

Huberus,  Valde  lubrica  est  hujus  rei  praxis,  et  tantum 
non  arbitraria.  * 

Charter-Parties.  —  Charter-parties  also  being  under  seal,  are 
to  be  included  under  this  head ;  and  we  have  already  consid- 
ered the  measure  of  damages  in  actions  of  this  kind.f  ^ 

Leases.  —  Leases,  being  also  usually  sealed  instruments,  gen- 
erally find  their  appropriate  remedy  in  this  action ;  but  the 
measure  of  damages  in  these  cases  has  been  already  partially 
discussed  elsewhere. $  ^ 

Having  thus  examined  the  rule  of  damages  in  actions  on 

*  Huber  FrxL  Jur.  lib.  22,  tit.  1,  vol.  iii.  p.  t  Wheelwright  v.  Beers,  2  Hall,  382  and 
89.  391.     Ante,  371,  et  seq. 

}  Ante,  201. 

1  On  a  charter-party,  or  instrument  in  the  nature  of  one,  the  rule  is  the  difference  between 
the  contract  price  and  what  the  vessel  might  have  earned  by  pursuing  her  voyage  with  other 
freight,  together  with  the  fair  value  of  the  time  lost  by  her  through  the  defendant's  breach  of 
contract.     Husten  ;;.  Richards,  44  Maine,  182  ;  Hunter  v.  Fry,  2  B.  &  A.  421. 

But  where  by  the  terms  of  the  cliarter  different  articles  of  freight  are  to  be  paid  for  at 
different  rates  by  weight,  and  the  freighter  is  at  liberty  to  supply  them  in  such  proportions 
as  he  may  choose,  the  proper  measure  of  damages  in  an  action  fur  not  supplying  cargo  is  the 
average  value  of  freight  for  the  voyage  calculated  on  the  various  rates  of  freight  in  the  propor- 
tion of  the  different  articles  usually  carried  on  similar  vovages.  Thomas  v.  Clarke,  2  Starkie, 
N.  P.  450. 

But  where  some  of  the  enumerated  articles  are  limited  as  to  the  amount  which  may  be 
carried,  and  that  limit  has  been  reached,  the  freight  of  substituted  articles  can  be  calculated 
only  on  an  average  of  the  remaining  goods.     Cockburn  v.  Alexander,  6  C.  B.  791. 

^  It  may  be  noticed  that  in  cases  where  the  amount  of  damages  depends  on  the  length  of 
a  life  in  being,  as  in  the  case  of  a  lease  for  life  or  a  dower  right,  tiie  courts,  if  not  by  the 
assent  of  parties,  usually  by  the  rules  of  their  practice,  resort  to  the  standard  annuity  tables, 
as  the  Northampton  or  Wigglesworth  Tables.  The  value  of  the  life  for  a  year  being  ascer- 
tained by  the  jury,  the  ex})ectation  of  the  life  becomes  a  matter  of  calculation  from  the  tables. 
See  How  v.  How,  48  Me.  428. 


I 


en.  XIV.]  LEASES.  427 

contracts  where  the  measure  of  remuneration  is  not  fixed  by 
the  parties,  Ave  shall,  after  treating  of  the  subject  of  Interest, 
turn  to  those  cases  where,  either  by  a  penalty  or  by  a  more 
precise  stipulation,  the  parties  endeavor  to  determine  the 
amount  of  compensation  which  shall  be  recoverable  on  a  breach 
of  the  agreement.^ 

1  Tlie  rule  of  actual  compensation  is  to  be  followed  in  the  action  of  covenant.  Where  a 
defeiuiant  assiy-ned  a  policy  of  insurance  for  .£1,000,  on  which  he  was  to  i)ay  the  premium  to 
trustees  fur  iiis  cretlitors  hy  a  deed  containinj^  a  covenant  that  he  would  do  nothing  to  avcjid 
the  policy,  which  was  subject  to  a  condition  that  if  the  assured  should  j;()  beyond  the  limits 
of  Europe,  it  should  be  void,  and  he  violated  this  covenant,  thereby  avoidinj^  the  ])oliey,  it  was 
held  that  the  measure  of  damaixes  was  the  value  of  the  policy  at  the  time  of  the  jud^^mcnt, 
taking-  into  consideration  the  fact  that  the  defendant  had  covenanted  to  pay  and  should  pay 
the  i)reraiums  thereon.    Hawkins  v.  Coulthurst,  5  B.  &  S.  (Q.  B.)  343. 


CHAPTER  XV. 

OF   INTEREST    WITH     REFERENCE    TO    DAMAGES. 

Interest  first  given  in  England  by  Statute.  —  When  allowed  as  Matter  of  Law. 
—  When  by  the  Jury  in  their  Discretion.  —  Allowed  where  a  Principal  Sum  is 
to  be  paid  at  a  Fixed  Time.  —  Where  an  Agreement  can  be  inferred.  —  Not 
allowed  where  the  Demand  is  unliquidated.  —  Conflict  between  English  and 
American  Decisions.  —  Money  improperly  detained.  —  Cash  Advances. — 
Special  Cases.  —  Compound  Interest.  —  Cash  Advance?.  —  Discretion  of  the 
Jury.  —  In  Trover  and  Trespass.  —  Interest  on  Error.  —  On  Judgment.  — 
When  Principal  has  been  paid. 

Interest  as  Damages.  —  Before  taking  leave  of  those  con- 
tracts in  which  the  damages  are  unliquidated,  we  have  to  exam- 
ine the  cases  in  which  Interest  is  allowed  as  damages.  We 
have  already  seen*  that  in  actions  brought  on  promises  to  pay 
a  .liquidated  sum  of  money,  as  on  promissory  notes  or  bills, 
where  no  question  arises  as  to  the  currency  or  rate  of  exchange, 
the  rule  of  damages  is  fixed  and  arbitrary,  being  identical  with 
the  rate  of  legal  interest.  We  are  now  considering  a  different 
and  more  complex  class  of  agreements.  In  these,  the  question 
of  interest  often  depends  on  the  true  construction  of  the  con- 
tract, or  the  just  inference  to  be  drawn  from  the  evidence  as  to 
the  intention  of  the  parties  :  and  when  this  is  the  case,  it  does 
not  properly  come  within  the  scope  of  this  treatise.  The 
allowance  or  infliction  of  interest  often,  however,  presents  it- 
self entirely  disconnected  from  any  question  of  contract ;  and 
in  this  aspect  the  subject  cannot  be  omitted  in  any  work  which 
treats  of  compensation  ;  for  it  is  to  be  observed  generally,  to 
use  the  language  of  Lord  Kenyon,t  "  that  where  interest  is 
intended  to  be  given,  it  forms  part  of  the  damages  assessed  by 
the  jury,  or  by  those  who  are  substituted  in  their  place  by  the 
parties,  t  ^ 

*  Atite,  ch.  viii.  p.  2.33.  prima  Rubric;!?  de  nsuris,  quibus  admo  dum 

t  Lee  V.  Lingard,  1  East,  401 .  affine  esse  id  quod  interest  aliquoties  intellix- 

%  And  so  says  Huberus,  Explicata  est  pars     imus.     Huber.  Pra;l.  Jur.  vol.  iii.  p.  88,  §  30. 

/    1  Where  interest  is  thus  allowed  by  the  jury,  it  must  enter  into  their  estimate  of  the  dam- 
l  ages,  and  be  found  as  a  part  of  them. 

Thus  where,  in  an  action  for  the  wrongful  sale  of  real  estate,  the  jury  found  a  vei'diet  for  a 


CH.    XV.]  INTEREST HOW    AWARDED.  429 

The  subject  of  interest  is  susceptible  of  a  very  clearly  [374] 
defined  division ;  first,  where  it  can  be  claimed  as  a  right, 
either  because  there  is  an  express  contract  to  pay  it,  or  because 
it  is  recoverable  as  damages  which  the  party  is  legally  bound 
to  pay  for  the  detention  of  money  or  property  improperly  with- 
held ;  *  ^  second,  where  it  is  imposed  to  punish  negligent,  tor- 
tious, or  fraudulent  conduct.  In  the  first  case  it  is  recoverable 
as  matter  of  law.^  In  the  second  case  it  rests  entirely  in  the 
pleasure  of  the  jury. 

Statutes  of  Henry  VIII.  and  Anne.  —  We  have  already  had 
occasion  to  notice  that  interest  was  originally  introduced  into 
English  jurisprudence  by  statutory  provision.!  "  Before  the 
statute  of  Henry  VIII.,"  $  says  Lord  Mansfield,§  "all  interest 
on  money  lent  w'as  prohibited  by  the  common  law,  as  it  is  now 
in  Roman  Catholic  countries."  ||  This  statute  provided  that 
none  should  take  for  any  loan  or  commodity  above  the  rate  of 
ten  pounds  for  one  hundred  pounds  for  one  whole  year,  which 
rate  was  reduced  to  five  per  cent,  by  a  subsequent  act.][ 

Agreement  for  Interest  implied  in  case  of  default  in  pay- 
ment OF  MONEY  at  A  GIVEN  TIME.  —  Where  a  principal  sum  is  to  be 
paid  at  a  specific  time,  the  English  law  has  always  since  the 
passage  of  this  act,  implied  an  agreement  to  make  good  the  loss 
arising  from  a  default,  by  the  payment  on  interest.  This  was 
expressly  said,**  by  Lord  Mansfield,  in  an  early  case. 

*  Ablpott  v.  Wilmot,  22  Verm.  437.  is  arrived  at  by  Mr.  Senator  Spencer,  in  his 

t  Ante,  eh.  viii.  pp.  236,  237.  very   able   dissenting   opinion   in    the    Rens. 

J  37  Hen.  VIII.  c.  9.  GLass  Factory  v.  Reid,  5  Covven,  587  and  604, 

§  In  Lowe  v.  Waller,  Douglass,  736  and  hereafter  cited. 

740.  If  12  Anne,  stat.  2,  c.  16. 

II  This  conchision,  notwithstanding  a  con-  **  Robinson   v.  Bland.  2  Burr.   1077  and 

trary  dictum  of  Lord  Hale   [Hard.  Rep,  420],  1086(1760). 

specified  sum,  with  interest  from  the  day  of  sale,  and  judgment  was  entered  accordingly,  it 
was  reversed  and  judgment  was  entered  by  the  Appellate  Court  for  the  amount  of  the  verdict 
less  the  interest.     Dozier  v.  Jerman,  30  Mo.  216. 

So  in  an  action  of  quantum  meruit  upon  an  unliquidated  contract,  the  jury  cannot  award 
interest,  eo  nomine,  upon  the  amount  of  their  verdict,  but,  if  it  is  taken  into  consideration,  it 
must  only  go  to  enhance  the  sum  awardetl  as  damages.  Dottercr  v.  Bennett,  5  Rich.  (8.  C.) 
L.  29.5.  Where  interest  is  comprehended  within  the  terms  of  a  contract,  it  is  not  added  by 
way  of  damajes,  but  is  a  substantive  part  of  the  debt,  ilummell  v.  Brown,  24  Penn.  St. 
310.  Interest,  in  the  State  of  Illinois,  in  actions  purely  ex  contractu  and  where  there  is  nothing 
tortious  in  the  character  of  the  indebtedness,  can  only  be  recovered  in  the  cases  specified  by 
statute,  or  where  there  has  been  an  express  pi-omise  to  pay  interest,  or  where  a  promise  cau 
be  inferred  from  circumstances,  from  the  particular  mode  of  dealing  adopted  by  the  parties, 
or  the  usage  of  the  trade  in  which  they  dealt.  Sammis  i'.  Clark,  13  III.  544 ;  Hitt  v.  Allen, 
Ibid.  592. 

1  A  purchaser  who  has  paid  in  advance,  and  recovers  damages  for  non-delivery,  cannot,  on 
affirming  the  contract,  recover  interest  on  his  advances.     Dobenspeck  i?.  Armel,  11  Ind.  31. 

In  New  Hampshire,  interest  is  recoverable  upon  the  amount  of  an  insurance  policy  wrong- 
fully withheld.  The  Swampscot  Machine  Co.  v.  Partridge,  5  Fost.  369  ;  see  also,  as  to  the 
recovery  of  interest  where  money  is  withheld  wrongfully,  Whitworth  v.  Hart,  22  Ala.  343. 

-  Richmond  v.  Bronson,  5  Donio,  55  ;  Roiiinsuu  v.  Corn  Exchange  Ins.  Co.  1  Ab.  Pr.  (N. 
S.)  186.     See  Gillett  v.  Van  Rensselaer,  15  N.  Y.  397. 


430  INTEREST.  [cn.  XV. 

"  Where  money  is  made  payable  by  an  agreement  between  parties,  and  a  time 
given  for  the  payment  of  it,  this  is  a  contract  to  pay  tite  money  at  a  given  timei 
and  to  pay  interest  for  it  from  the  given  day  in  case  of  failure  of  payment  at  that 
day.  So  that  the  action  is,  in  effect,  brought  to  obtain  a  specific  performance  of 
the  contract.  For  pecuniary  damages,  as  upon  a  contract  for  the  payment  of 
money,  are  from  the  nature  of  the  thing,  a  specific  performance,  and  the  relief  is 
defective  so  far  as  all  the  money  is  not  paid." 

[375]  And  Lord  Thurlow  said,*  "  All  contracts  to  pay  un- 
doubtedly give  a  right  to  interest  from  the  time  when 
the  principal  ought  to  be  paid."  This  language  has  been  cited 
with  approbation  in  this  country.!  ^  In  these  cases  the  interest 
computed  at  the  legal  rate,  becomes  the  fixed  measure  of  dam- 
ages, to  which  the  plaintiff  is  entitled  as  of  right,  as  on  a  bill  ^ 
or  note  for  instance,  the  refusal  of  which  would  be  error,  and 
no  more  than  which  can  be  recovered.  %  Lord  Mansfield 
extended  the  principle  further  than  it  had  been  carried  before 
his  time,  holding  that  in  such  actions  interest  should  be  com- 
puted to  the  time  of  the  verdict,  instead  of,  as  had  been  pre- 
viously practiced,  to  the  commencement  of  the  suit.§ 

Where  the  Time  of  Payment  is  indefinite  the  English  Rule  does 
NOT  IMPLY  Interest.  —  But  where  money  is  due,  without  any 
definite  time  of  payment,^  and  there  is  no  contract,  express  or 
implied,  that  interest  shall  be  paid,  the  English  rule,  independ- 
ent of  statute,  is,  that  it  cannot  be  claimed.  In  the  Common 
Pleas,  II  it  was  early  said,  that  in  an  action  for  money  had  and 
received,  the  plaintiff  could  recover  nothing  but  the  net  svim 
without  interest.  In  the  King's  Bench,^  Lord  EUenborough 
said,  "  Lord  Mansfield  sat  here  for  upwards  of  thirty  years.  Lord 
Kenyon  for  above  thirteen  years,  and  I  have  now  sat  here  for 
more  than  nine  years ;   and  during  this  long  course  of  time,  no 

*  Boddam  v.  Riley,  2  Bro.  C.  C.  2.  with  the  costs,  but  not  in  cases  of  tort.     2  R. 

t  Williams  v.  Sherman,  7  Wend.  109.  S.  364,  §  9.    Henning  v.  Van  Tyne,  19  Weu- 

X  Ante,  233  ;  ante,  of  Bills  and  Notes,  237.  dell,  101. 

§  Robinson?;.  Bland,  2  Burr.    1077,    1086.  ||  Walker  r.  Constable,  1  Bos.   &  Pul.  307, 

In  New  York,  interest  accruintj  in  cases  of  and  Tapjicnden  v.  Randall,  2  B.  &  P.  472. 

contract,  subsequent  to  the  verdict,  is  taxed  1[  Calton  v.  Bragg,  15  East,  223  (1812). 

^  And,  "vice  versa,"  where  the  purchase-money  of  real  estate  has  been  ready,  and  no  inter- 
est has  been  made  of  it,  the  purchaser  may  recover  interest  upon  it.  Flureau  v.  Thornhill,  2 
Black.  1078;  Richards  v.  Barton,  1  Esp.  N.  P.  268. 

2  If  a  bill  of  exchange,  on  the  face  of  which  no  interest  is  reserved,  is  drawn  in  one  country 
payable  in  another,  the  drawer  is  liable  on  its  dishonor  to  pay  as  damages  interest  at  the  cur- 
rent rate  in  the  country  where  the  bill  was  drawn.  Gibbs  v.  Fremont,  9  Exch.  25  ;  S.  C.  20 
Eng.  L.  &  E.  555. 

2  LTpon  a  bond  conditioned  for  the  payment  of  a  sura  of  money,  where  no  time  was  men- 
tioned for  the  payment,  and  it  was  not  even  stated  to  be  payable  on  demand,  and  nothing  was 
said  about  interest,  it  was  held  that  interest  was  payable  from  the  date  of  the  bond.  Purdy  v. 
Phillips,  1  Kern.  (N.  Y.)  406. 


CH.    XV.]  ENGLISH    RULE,  431 

case  h<as  occurred,  where,  upon  a  mere  simple  contract  of  lend- 
ing, without  an  agreement  for  payment  of  the  principal  at  a 
certain  tiuie,  or  for  interest  to  run  immediately,  or  under  spe- 
cial circumstances  from  whence  a  contract  for  interest  was  to 
be  inferred,  interest  has  ever  been  given."  The  interest  here 
claimed  was  on  money  lent.*  In  a  subsequent  case,t  Abbott, 
C.  J.,  said,  "  It  is  now  established  as  a  general  principle,  that 
interest  is  allowed  by  law  only  upon  mercantile  securi- 
ties, or  in  those  cases  where  there  has  been  an  express  [376] 
promise  to  pay  interest,  or  where  such  promise  is  implied 
from  the  usage  of  trade  or  other  circumstances." 

Nor  does  Fraud  alter  the  English  Rule.  —  The  rule  here  laid 
down  has  been,  as  we  shall  see,  a  good  deal  modified  in  this 
country  ;  but  the  English  courts  have  adhered  to  the  doctrine 
with  considerable  rigor.  Thus  they  have  refused  interest  where 
property  has  been  unjustly  detained,  or  payment  improperly  re- 
fused, even  in  cases  of  fraud  ;  Lord  Ellenborough  $  saying,  that 
the  fraud  did  not  take  this  case  out  of  the  rule  which  he  had 
previously  laid  down,§  that  there  must  be  an  agreement,  ex- 
press or  implied ;  and  the  same  principle  was  afterwards  adhered 
to.  II 

Case  of  Payment  by  Surety.  —  But  a  surety  who  is  indemni- 
fied against  all  loss  by  his  principal,  and  who  is  compelled  to 
pay  the  debt  of  his  principal,  is  entitled  to  interest  on  the 
amount  so  paid,  though  interest  was  not  expressly  mentioned  in 
the  contract  between  them,  and  though  there  was  not  any  de- 
mand of  interest,  and  though  the  claim  in  respect  thereof  was 
not  made  till  many  years  after  payment.^ 

*  See,  also,  Arnott  v.  Rcdfern,  3  Bing.  353.  ment  at  a  certain  time  ;  or  if  payable  otherwise, 
t  Higgins  ;;.  Sargent,  2  B.  &  Crcs.  348.  then  from  the  time  when  demand  of  payment 
t  Crockford  v.  Winter,  1  Camp.  129.  shall  have   been  made  in  writing,  so  as  such 
§  De   Havilland   v.  Bowerbank,    1    Camp,  demand  shall  give  notice  to  the  debtor  that  ia- 
50.  terest  will  be  claimed  from  the  date  of  such  de- 
ll De  Bernales  v.  Fuller,  2  Camp.  426.    The  mand  until  the  time  of  payment,  provided  that 
English  courts  do  not  appear  to  have  in  any  interest  shall  be  payable  in  all  cases  in  which 
way  departed  from  the  rule  of  De  Bernales  v.  it  is  now  payable  in  law."    This  statutory  rcg- 
Fuller,  and  De  Havilland  v.  Bowerbank  ;  see  ulation  recognizes  the  hardship  of  the  old"  rule, 
Fruhling  v.  Schroeder,  2  Bing.  N.  C.  77  ;  but  but  leaves  the  matter  in  great  uncertainty,  the 
in  a  large  class  of  cases  a  different  rule  has  whole  thing  being  given  to  the  discretion  of  a 
been   introduced    by   statute.     The   3  and   4  jury  in  the  particular  case.    As  to  this  statute, 
Will.  IV.  c.  42,  38,  declares,  "  that  upon  all  seeDavis  v.  Smyth,  8  Mees.  &  Wels.  399,  an 
debts  or  sums   certain,   payable  at   a   certain  action  of  debt  for  goods  sold  and  delivered.    It 
time,  or  otherwise,  the  jury  on  the  trial  of  any  was  found  that  the  defendant  had  agreed,  at 
issue,  or  on  any  inquisition  of  damages,  mai/,  the  time  of  the  contract,  to  give  a  bill  or  note 
if  they   shall    think  tit,   allow  interest  to    the  for  the  price.     The  jury  gave  interest,  and  it 
creditor,  at  a  rate  not  exceeding  the  current  was  held  right.     And  see  also.  Harper  i'.  Wil- 
rate  of  interest  from  the  time  when  said  debts  liams,  4  Q  B.  219. 

or  sums  were  payable,  if  such  debts  or  sums  1[  Petre  t'.  Duncombe,  15  Jur.  86;  2Lowndes, 

be  payable  by  virtue  of  some  written  instru-  M.  &  P.  Pr.  Cas.  107. 


432  INTEREST.  [CH.    XV. 

Agreement  for  Interest  inferred  from  Usage.  —  It  is  well 
settled  in  the  United  States,  that  an  agreement  to  pay  interest 
may  be  inferred  from  usage.  Thus,  in  New  York,*  interest  has 
been  allowed  on  the  account  of  a  forwarding  merchant,  on  the 

ground  of  a  universal  custom  to  charge  interest  on  such 
[377]  accounts,  the   custom  being  known  to  the  defendant ; 

and  Savage,  C.  J.,  said,  "  Interest  is  always  properly 
chargeable  when  there  is  either  an  express  or  an  implied  agree- 
ment to  pay  it."  t 

Interest  Not  Recoverable  on  Unliquidated  Demands.  —  It  is 
also  a  general  rule,  that  interest  is  not  recoverable  on  unliqui- 
dated demands.^  In  an  action  |  for  not  delivering  teas  accord- 
ing to  agreement,  Judge  Washington,  at  Nisi  Prius,  said,  "  It  is 
not  agreeable  to  legal  princij)les  to  allow  interest  on  unliqui- 
dated or  contested  claims  in  damages."  "  The  rule  is  well 
settled,"  says  Parker,  J.,  in  the  Su2Dreme  Court  of  New  York, 
"  that  interest  is  not  recoverable  on  running  or  unliquidated 
accounts,  unless  there  is  an  agreement,  either  express  or  im- 
plied, to  pay  interest.§  So  in  Massachusetts,  it  is  said,  "  that 
interest  cannot  be  recovered  upon  an  open  and  running  ac- 
count for  work  and  labor,  goods  sold,  and  the  like,  unless  there  is 
some  contract  to  pay  interest,  or  some  usage,  as  in  the  case  of 
the  custom  of  merchants,  from  which  a  contract  may  be  in- 
ferred." 11^     And  so  also  in  Texas,  interest  is  denied  on  an  open 

*  Meechu.  Smith,  7  Wend.  315.  Trotter   v.    Grant,   2    Wend.    413;  Wood   v. 

t  See  also,    S.    P.   Reab  v.   M'Allister,    8  Ilickok,  2  Wend.  501 ;  McKnight  v.  Dunlop, 

Wend.  109.  4  Barb.  S.  C.  R.  36. 

X  Gilpins  V.  Consequa,  Peters'  C.  C.  R.  88.  \\  Hunt   v.  Nevers,  15   Pick.  500;    Goff  v. 

§  Esterly  v.  Cole,  1  Barb.  S.  C.  Rep.  235.  Inliab.  of  Rehoboth,  2  Ciish.  475. 
See   also,  Newell  v.   Griswold,   6   J.    R.  45 ; 

1  Holmes  v.  Rankin,  17  Barb.  (N.  Y.)  454.  Bnt  see  Fitch  v.  Livingston,  4  Sandf.  (N.  Y.) 
492.  VViiere  a  j)arty  contracting  to  furnish  labor  and  materials,  has  completely  fulfilled  the 
contract  on  his  part  in  due  time,  he  is  entitled  to  recover,  in  a  suit  for  the  compensation  stipu- 
lated by  the  contract,  interest  on  the  amount  due  him,  at  least  from  the  commencement  of  the 
suit.  But  where,  in  such  case,  the  right  of  the  party  to  recover  his  compensation  under  the 
contract  is  doubtful,  and  contested  on  reasonable  grounds,  and  the  amount  due  him  requires 
to  be  adjusted  by  the  proceedings  in  the  suit,  interest  is  only  recoverable  after  tlie  right  of 
the  party  to  recover,  and  the  amount  of  his  recovery,  have  been  determined.  The  Isaac  New- 
ton, 1  Abbott's  Adm.  R.  588. 

2  In  New  Hampshire,  where  goods  are  sold  and  delivered,  and  the  time  of  payment  is  agreed 
on  by  the  parties,  interest  is  recoverable  from  the  period  so  fixed,  by  way  of  damages,  for  the 
wrongful  detention  of  the  money  after  that  time.  And  where  no  time  of  payment  is  fixed,  but 
a  demand  of  payment  is  made,  interest  is  recoverable  from  the  time  of  the  demand.  The 
National  Lancers  v.  Lovering,  10  Post.  (N.  H.)  511.  In  Illinois,  interest  is  not  allowed  upon 
an  account,  unless  tliere  is  unreasonable  and  vexatious  delay  in  the  payment  of  the  money. 
Aldrich  v.  Dunham,  16  111.  403.  A  delay  from  October  to  December  was  held  not  to  be  un- 
reasonable, in  McCormick  v.  Elston,  Ibid.  204.  It  is  now  settled  in  New  York  that  in  actions 
of  contract  interest  is  no  longer  in  the  discretion  of  the  jury,  but  a  matter  of  right,  and  as  essen- 
tial to  legal  indemnity  as  the  principal  sum  or  ascertained  value  to  which  it  is  an  incident. 
For  the  non-delivery  of  merchandise,  therefore,  pursuant  to  contract,  interest  on  the  value  of 


CH.    XV.]  MONEY    IMPROPERLY    WITHHELD.  433 

accoiiiit*  So,  in  an  action  on  a  policy  of  insurance,  if  tlie  pre- 
liminary proofs  are  so  vague  that  the  claim  cannot  be  com- 
puted, interest  is  not  allowable.!  ^  On  the  otlier  hand,  on  liqui- 
dated amounts,  interest  is  recoverable  ;^  as,  when  accounts  are 
stated  between  the  parties,  or  rendered,  and  not  dissented  from.t^ 

In  America  Interest  folloavs  the  Fraudulent  Detention  of 
Money.  —  We  have  seen  above,  that  in  England,  interest  has 
been  refused,  even  where  fraud  is  practiced  by  the  defendant  ;§ 
Ijut  this  is  not  the  American  rule.  In  an  early  case,  the  Eng- 
lish cases  were  reviewed  at  length  by  the  Supreme  Court  of 
the  State  of  New  York,  and  their  principle  was  disap- 
proved of  When  money  is  received  by  a  party  who  [378] 
improperly  detains  it,  or  converts  it  to  his  own  use,  he 
must  with  us  pay  interest.||  ^  So  when  money  has  been  improp- 
erly^ withheld  by  a  public  officer,  as  where  a  sheriff  retains 
money  after  the  return  day  of  the  execution,  he  is  liable  for 
interest.^[  So  a  party  receiving  money  belonging  to  another, 
and  refusing  to  pay  it  over,  is  chargeable  with,  interest,  al- 
though he  has  a  set-off  and  the  precise  amount  due  from  him  is 
not  liquidated  previous  to  the  commencement  of  the  suit.*  * 

*  Cloud  V.  Smith,  1  Texas,  102.  J  Walden  v.  Sherburne,  15  J.  R.  409. 

t  M'Loughlin  v.  Washington   Ins.   Co.    23  §  Ante,  376. 

Wend.  525.     But  in  an  early  case,  it  was  held,  ||  People  v.  Gashcrie,  9  J.  R.  71  ;  Lvnch  v. 

that  though  interest  is  not  strictly  recoverable  Dc  Viar,  .3  J.  C.  303. 

as  of  right  on  a  partial  loss  under  a  policy  of  T[  Slingerland  v.  Swart,  13  J.  R.  255;  Crane 

insurance,  still   the  juiy  may  give  it  if  they  v.  Dygert,  4  Wend.  675. 

think  proper.     Anon.  1  J.  R.  315.  **  Greenly  v.  Hopkins,  10  Wend.  96. 

the  merchandise,  from  the  time  when  it  should  have  been  delivered  is  recoverable,  as  of  right. 
See  Dana  v.  Fiedler,  12  N.  Y.  40,  50.  And  in  actions  of  tort,  the  Superior  Court  of  the  city  of 
New  Y'ork,  going,  Ave  think,  somewhat  beyond  previous  decisions,  have  lately  applied  the  prin- 
ciple not  merely  to  the  wrongful  taking  or  conversion  of  specific  personal  propertv,  but  to 
other  actions  for  the  loss  or  destruction  of  property  of  ascertainable  value,  holding,  in  an  action 
against  a  municipal  corporation,  to  recover  damages  for  injuries  done  to  real  estate  by  a  mob, 
that  the  jury  were  properly  instructed  to  allow  interest  on  the  value  of  the  buildings  destroyed. 
Greer  v.  The  Mayor,  3  Robertson  (N.  IT.  Su])erior),  406. 

1  Nor  unless  the  insurer  be  in  default  in  payment.  Oriental  B'k  v.  Tremont  Ins.  Co.  4 
!Met.  (Mass.)  1  ;  Gammagc  v.  Alexander,  14  Tex.  414. 

'^  Hollingsworth  v.  Hammond,  30  Ala.  668.  Interest  is  recoverable  upon  all  liquidated  de- 
mands ;  upon  bonds,  notes,  bills  of  exchange,  and  accounts  stated.  A  judgment  is  a  liquidated 
demand,  though  it  be  rendered  in  a  foreign  court.  A  sum  certain,  a  fixed  time  of  payment, 
and  tlie  ])arties  by  whom  and  to  whom  payment  is  to  be  made,  —  these  are  the  essential's  of  a 
liquidated  demand.     Nelson  v.  Felder,  7  Rich.  (S.  C.)  Eq.  395. 

^  Without  proof  of  the  time  when  payment  was  demanded,  interest  can  be  allowed  only  from 
the  time  of  suit  brought.     Rawson  v.  Grow,  4  E.  I).  S.  (N.  Y.)  18. 

■»  Ban-  r.  Ilaseldon,  10  Rich.  Eq.  (S.  C.)  53  ;  Tarpley  v.  Wilson,  33  Miss.  (4  George)  467  ; 
Parker  r.  Biglow,  14  Pick.  436.  In  a  case  in  Connecticut  where  by  the  i)reseut  law  usurious 
contracts  are  void  to  the  extent  only  of  all  the  agreed  interest,  and  if  anything  has  been  paid  on 
account  of  the  usurious  interest,  such  amount  is  deducted  from  the  debt,  and  judgment  ren- 
dered for  such  sum  as  will  give  the  ])laintiif  in  the  whole  the  amount  originally  lent  oidy,  with- 
out interest  (^Conn.  Laws,  1849),  the  Supreme  Court  held  that  while  the  delendant  had  the 
right  under  the  statute  to  deduct  the  usurious  interest  taken,  it  was  not  the  less  his  legal  duty 
to  pay  the  remainder  on  the  maturity  of  the  obligation,  and  allowed  the  plaintiflT  as  damages  "a 
sum  equivalent  to  the  interest  on  the  unpaid  principal  from  the  time  it  became  due.  Fisher  v. 
Bidwell,  27  Conn.  363. 

28 


484  INTEREST.  [CII.    XV. 

So  in  Vermont,  where  the  defendant  had  made  a  gross  and 
fraudulent  misapplication  of  funds,  he  was  held  riglitly  charge- 
able with  interest,  and  the  jury  were  so  instructed.*  And  the 
rule  in  Pennsylvania  is  the  same.f  In  Massachusetts  also,  it 
has  been  held,  that  where  the  defendant  in  an  action  for  money 
had  and  received,  has  fraudulently  obtained  or  wrongfully  de- 
tained the  plaintiff's  money,  he  is  chargeable  with  interest  from 
the  time  of  his  so  obtaining  or  detaining  the  same.$  In  a  more 
recent  case  in  that  State  it  has  been  held,  where  an  agent, 
although  acting  in  good  faith,  unreasonably  neglected  to  inform 
his  principal  of  the  receipt  of  money,  that  he  was  liable  for  in- 
terest ;  and  it  was  then  generally  intimated,  that  wlien  the  pay- 
ment of  money  due  is  withheld  unlawfully  and  against  right,  the 
law  will  allow  interest.§^ 

But  in  the  same  State  it  is  held,  that  where  money  is  payable 
on  demand,  and  there  is  no  contract  or  usage  to  pay  interest, 
and  the  defendant  is  not  a  wrong-doer  in  acquiring  or  detaining 
it,  interest  is  to  be  computed  from  the  service  of  the  writ  only.||^ 
In  many  cases,  an  express  demand  is  necessary.  So, 
[379]  an  attorney  who  has  advised  his  principal,  is  not  liable 
till  demand,  unless  expressly  directed  to  remit. ^ 

Examination  of  American  Cases.  —  In  North  Carolina,  after 
stating  the  English  rule,  the  court  said,  "  Our  decisions  have 
extended  the  rule ;  and  for  money  lent,  or  money  paid  or  had 
and  received,  or  due  on  an  account  stated,  the  jury  ought  to  be 
instructed  to  allow  interest,  the  promise  to  pay  it  being  implied 
from  the  nature  of  the  transaction."     But  in  the  case  in  which 

*  Crane  v.  Thayer,  18  Verm.  162.  ||  Hunt  v.  Nevers,  15  Pick.  500.     See  also, 

t  Commonwealth  v.   Crevor,  3   Binn.    121  Brc^Yer  v.  Tyringham,  12  Pick.  547  ;  Haven 

and  123'.  v.  Foster,  9  Pick.  112.     As  to  interest  against 

I  Wood  y.  Robbins,  11  Mass.  504 ;  GoiF  ?;.  executors,   Dawes   v.   Winsliip,    5    Pick.   97; 

luhab.  of  Rehoboth,  2    Cush.  475 ;  Hubbard  Parker  v.  Thompson,  3  Pick.  429  ;  Hubbard 

et  III.  V.  Charlestown  Branch  R.  R.  Co.  11  Met.  et  ah  v.  Charlestown  B.  R.  R.  Co.  11  Met.  124. 

124.  1  Williams  v.  Storrs,  6  J.  Ch.  R.  353. 

§  Dodge  V.  Perkins,  9  Pick.  368. 

1  An  agent  with  whom  money  is  deposited  for  a  definite  owner,  is  chargealjle  with  the  in- 
terest which  he  receives  for  the  use  of  such  money.  Bassett  v.  Kinney,  24  Conn.  267.  So 
where  one  collects  money  for  another  and  refuses  to  pay  it  over,  the  jury  may  allow  damages 
for  the  detention,  and  the  measure  of  damages  is  the  lawful  rate  of  interest.  Close  v.  Field, 
13  Tex.  623.  But  a  mere  stake-holder  is  not  liable  for  interest  upon  money  in  his  hands, 
although  he  makes  a  profit  b}-  the  use  of  it.  Jones  v.  Mallory,  22  Conn.  386.  See,  however, 
Ruckmau  v.  Pitcher,  20  N.  Y.  9  ;  post,  380,  note  3. 

-  Where  by  an  arrangement  with  a  banking  firm  a  depositor  was  allowed  five  per  cent,  in- 
terest on  his  current  balance,  and  he  died  leaving  a  balance  in  their  hands,  and  a  period  of 
nearly  four  years  elapsed  between  his  death  and  the  issue  of  letters  of  administration  on  his 
estate,  the  bankers  not  having  signified  their  election  not  to  use  the  amount  by  making  a 
special  deposit  of  it  in  some  bank,  or  by  kee[)ing  a  fund  continually  reserved  to  the  extent  of 
the  balance,  were  held  liable  to  pay  the  administrator  the  five  per  cent,  interest  during  the 
period.     Watts  v.  Garcia,  40  Barb.  656. 


CII.    XV.]  AMERICAN    DECISIONS.  435 

this  language  was  liekl,  the  court  refused   to  allow  it  on   the 
award  of  arbitrators.*^ 

In  a  case  in  which  a  man  covenanted  to  convey  lands  without 
fraud,  and  it  afterwards  appeared  that  in  truth  he  had  no  title 
to  the  land,  it  has  been  held  in  Virginia,  that  whether  the  jury 
should  allow  interest  on  the  value  of  the  land  from  the  date  of 
the  contract  must  depend  on  the  circumstances  of  the  case,  of 
which  they  are  the  proper  judges;  and  that  it  is  competent  to 
the  defendant  to  give  hi  evidence  any  circumstances  tending  to 
show  that  interest  should  not  be  allowed.!  This  distinction 
between  a  party  witholding  money  due  in  good  faith  or  other- 
wise, presents  the  question  which  we  have  heretofore  considered 
—  whether  it  is  proper  in  an  action  of  contract,  under  the  forms 
of  our  law,  to  raise  an  issue  which  is  strictly  one  of  tort.  And 
I  refer  the  learned  reader  to  the  discussion  of  that  question 
which  has  alreadj^  been  had.$ 

In  South  Carolina  the  rule  above  stated  appears  to  be  adhered 
to,  interest  being  denied  on  accounts  for  work  done  or  goods 
sold  and  delivered,  or  any  other  open  accounts,  although  the 
money  is  Avithheld  after  the  time  of  payment  is  past.§ 

In  a  case  in  New  York,||  the  whole  subject  was  much  [380] 
discussed  by  the  courts  of  that  State,  and  the  English 
and  American  decisions  reviewed  at  length.  It  was  an  action 
brought  by  an  agent  to  recover  for  cash  advances  and  salary. 
And  Savage,  C.  J.,  said,]y  "  From  an  examination  of  the  cases,  it 
seems  that  mterest  is  allowed  —  First,  upon  a  special  agree- 
ment. Second,  upon  an  implied  promise  to  pay  it,  and  this  may 
arise  from  usage  between  the  parties,  or  usage  of  a  particular 
trade.^  Third,  where  money  is  withheld  against  the  will  of  the 
owner.^  Fourth,  by  way  of  punishment  for  any  illegal  conver- 
sion  or   use   of  another's   property.     Fifth,  upon   advances  of 

*  Devei-eux  v.  Burgwin,  11  Iredell,  491.  Cowen,  393;  and  in  Error,  5  Cow.  587;  and 

t  Letcher   v.  Woodson,   1    Brock.  C.  C.  R.  the  whole  snbject  has  been  ajjain  recently  re- 

212.  viewed  by  Willard,  J.,  in  Van  Rensselai'r  v. 

X  Ante,  204,  et  seq.  Jones,  2  Barb.  S.  C.  R.  643,  where  an  able 

§  Knight  V.  Mitchell,  3  Brcv.  506  ;  Goddard  opinion  will  be  found,  collecting  and  comment- 

V.  Billow,  1  Nott  &  M'Cord,  45  ;  and  Farrand  ing  upon  the  cases. 

V.  Bouchell,  Harpers'  Rep.  83.  ^  3  Cowen,  436. 

II  Reid  V.  The  Rensselaer  Glass  Factory,  3 


1  In  making  up  a  judgment  upon  an  award,  intei-est  on  the  amount  awarded  cannot  be 
allowed.     Kendall  v.  The  Lewiston  AVater  Power  Co.  36  Me.  19. 

-  So  on  default  in  performance  of  an  alternative  agreement  to  pay  cash  or  give  notes,  in- 
terest runs  from  the  time  the  notes  or  cash  should  have  been  given.  Stuart  v.  Binsse,  10  Bosw. 
436. 

^  Where  money  won  in  a  wager  contrary  to  law  is  paid  over  to  the  winner  by  the  stake- 
holder, interest  from  the  time  of  the  demand  as  well  as  the  principal  may  be  recovered  from 
him  by  the  loser.     Ruckman  v.  Pitcher,  20  N.  Y.  9. 


436  INTEREST.  [CH.    XV. 

cash.*^  And  in  the  principal  case,  interest  was  allowed  npon  a 
running  account  of  cash  advances,  without  au}^  liquidation  of 
the  account  or  promise  to  pay.  It  was  denied,  however,  on  the 
agent's  claim  for  salary ;  and  it  seems  to  be  the  general  rule, 
that,  subject  to  the  qualifications  above  laid  down,  it  will  not  be 
allowed  for  goods  or  labor.f 

It  has  been  decided,  however,  that  interest  is  allowable  from 
the  time  of  suit  brought  for  the  recovery  of  an  amount  due  for 
work  under  a  special  contract,^  unless  the  testimony  offered  by 
way  of  abatement,  mitigation,  or  recoupment,  makes  the  princi- 
pal debt  stand  open  for  hquidation.§  ^ 

It  has  been  held  in  Massachusetts,! |  that  in  an  action 
[381]  for  money  paid  interest  is  recoverable  from  the  time  of 
payment,  without  proof  of  a  demand  of  payment.  But 
as  between  principal  and  agent,  the  general  rule  is  that,  in  the 
absence  of  any  contract,  or  custom  which  may  be  evidence  of 
contract,  a  factor  is  not  liable  for  interest  until  he  is  in  some 
default.  •[[ 

On  the  Ehode  Island  circuit,**  Story,  J.,  sitting  in  equity, 
held,  that  an  administrator  is  not  liable  to  pay  interest  on  assets 
in  his  hands,  unless  under  special  circumstances ;  saying,  also, 
•'  Interest  is  not  allowed  on  ^partnership  accounts,  generally,  until 

*  This  same  point,  that  interest  was  chai'ge-  4.  Where  goods  are  sold  to  be  paid  for  on  a 

able   on  cash  advances,  had  jireviously  been  day  certain,  interest  in  like  manner  follows, 

decided  in  an  early  case  in  New  York,  Lio-  5.  AVhere  money  is  received  for  the  use  of 

tai'd  V.  Graves,  3  Caines,  226.  another,  and  there  is  neglect  in  not  paying  it, 

t  Doyle's  Adm'rs  v.  St.  James'  Church,  7  interest  follows. 
Wend.  178;  Tucker  v.  Ives,  6  Cowen,  193;  6.  Where  money  is  obtained  by  fraud,  inter- 
Kane  V.  Smith,  12  J.  K.  156  ;  Van  Beuren  v.  est  is  allowed. 
Van  Gaasbeck,  4  Cowen,  496.  7.  When  an  account  is  liquidated  and  bal- 

J  Feeter  v.  Heath,  11  Wend.  478.  ance  ascertained,  interest  begins  to  run. 

§  Still  I'.  Hall,  20  Wend.  .'51.  8.  Where  goods  are  delivered  to  be  paid  for, 

The  subject  was  examined  at  an  early  day  not  at  a  day  certain,  but  in  a  reasonable  time, 

in  Connecticut,  and  the  following  propositions  and  there  is   unreasonable   delay,  interest  is 

declared,  —  allowed. 

1.  Interest  will  be  allowed  when  there  is  an  9.  But  whei"e  there  are  current  accounts 
express  contract  to  pay  it.  founded  on  mutual  dealings,  and  no  promise 

2.  Such  contract  may  be  inferred  from  to  pay  interest,  interest  will  not  be  allowed, 
usage,  special  or  general.  Selleck  v.  French,  1  Conn.  32. 

3.  Where  there  is  a  contract  to  pay  money  ||  Ilsley  v.  Jewett,  2  Met.  168. 

on  a  day  certain,  and  the  agreement  is  broken,         Tf  Ellery  v.  Cunningham,  1  Met.  112. 
interest  will  be  allowed  by  way  of  damages,         **  Dexter  v.  Arnold,  3  Mason,  284. 
as  on  notes,  etc. 

1  Glllet  V.  Van  Rensselaer,  15  N.  Y.  397. 

'■^  See  the  Isaac  Newton,  1  Al^bott's  Adm.  R.  588.  It  is  there  held  also,  that  where  by  the 
terms  of  a  contract  for  work  and  materials,  a  part  of  the  contract  price  is  to  be  paid  in  instal- 
ments as  the  work  advances,  the  employed  is  not  entitled,  on  the  adjustment  of  a  decree  for  a 
balance  remaining  due  on  the  work,  to  be  credited  with  interest  on  the  payments  made  by 
him  while  it  was  advancing.  The  Isaac  Newton,  1  Abbott's  Adm.  R.  588.  "  There  is  another 
ground  upon  which  interest  sometimes  is  allowed,  and  perhaps  with  propriety  may  be,  although 
the  amount  of  the  demand  neither  has  been  nor  can  be  readily  ascertained,  namely,  that  the 
debtor  is  in  default  for  not  having  taken  the  requisite  steps  to  ascertain  the  amount  of  the 
debt."  Per  Seldcn,  Justice,  delivering  the  opinion  of  the  Court  of  Appeals  of  New  York  in 
McMahon  v.  The  N.  Y.  &  Erie  R.  R.  Co.  20  N.  Y.  463. 


en.    XV.]  UPON   RENT.  437 

after  a  balance  is  struck,  or  a  settlement  between  the  parties, 
unless  the  parties  have  otherwise  agreed  or  acted  in  the  partner- 
ship concerns."  In  New  Hampshire,  in  assumpsit  for  goods  sold 
and  delivered,  it  is  held  that  the  jury  should  allow  interest,  by 
way  of  damages  for  the  detention  of  the  debt,  upon  the  amount 
they  find  due  from  the  time  of  a  demand  of  payment,^  if  one  be 
proved,  or,  if  there  be  no  demand,  from  the  commencement  of 
the  suit.* 

In  an  action  of  covenant  to  recover  rent,  it  has  been  held  in 
New  York  that  the  plaintiff  was  entitled  to  interest,  it  being  for 
a  sum  certain,  and  payable  in  money.f  It  was  originally  held 
that  it  could  not  be  recovered  where  the  rent  was  payable  in 
wheat.t  But  this  is  now  settled  the  other  way ;  and  in  a  case 
where  the  rent  was  payable  in  wheat  and  services,  the 
Court  of  Appeals  of  New  York  held  this  language :  [382] 
"  Whenever  a  debtor  is  in  default  for  not  paying  money, 
delivering  property,  or  rendering  services,  in  pursuance  of  his 
contract,  justice  requires  that  he  should  indemnify  the  creditor 
for  the  wrong  which  has  been  done  him ;  and  a  just  indemnity, 
though  it  may  sometimes  be  more,  can  never  be  less  than  the 
specified  amount  of  money  or  the  value  of  the  property  or  ser- 
vices at  the  time  they  should  have  been  paid  or  rendered,  with 
interest  from  the  time  of  the  default  until  the  obligation  is 
discharo-ed.  And  if  the  creditor  is  obliged  to  resort  to  the  court 
for  redress,  he  ought  in  all  such  cases  to  recover  interest,  in 
addition  to  the  debt,  by  way  of  damages.  It  is  true  that  on  an 
agreement  like  the  one  under  consideration,  the  amount  of  the 
debt  can  only  be  ascertained  by  inquiry  concerning  the  value  of 
the  property  and  services ;  but  the  value  can  be  ascertained, 
and  wdien  that  has  been  done,  the  creditor,  as  a  question  of  prin- 
ciple, is  just  as  plainly  entitled  to  interest  after  the  default  as  he 
would  be  if  the  like  sum  had  been  payable  in  money.§ 

It  has  been  said  by  Mr.  Justice  Story,  on  the  Massachusetts 
circuit,  that  in  claims  for  wages  interest  is  generally  allow^ed 
from  the  time  of  a  demand  made,  and  this  both  at  common  law 
and  in  the  admiralty.||  It  seems  a  general  principle  that  a  mort- 
gagee in  possession  is  not  to  pay  interest  on  rents  unless  there 

*  Mcllvaine  y.  Wilkins,  12  N.  H.  474.  §  Van  Rensselaer  v.  Jewett,  5  Deiiio,  136, 

t  Clark  V.  Barlow,  4  J.  R.  183.     So,  too,  in  and  2  Comstock,  133.     See  also  an  able  opin- 

Kentiicky,  Burnliam  v.  Best,   10  B.  Monroe,  ion  of  Willard,  J.,  in  Van-Kensselaer  r.  Jones, 

227.        "  2  Barb.  S.  C.  R.  643,  where  the  whole  subject 

I  Van  Rensselaer's  Executors  v.  Platner's  is  examined.'' 
Adm'rs,  1  J.  R.  276.  ||  Gammell  v.  Skinner,  2  Gallison,  45. 

1  Livermore  v.  Rand,  6  Fost.  (N.  H.)  85. 

^  The  doctrine  of  these  cases  was  reaffirmed  in  Livingston  v.  Miller,  1  Kern.  (N.  Y.)  80. 


438  INTEREST.  [CH.    XV. 

are  special  circumstances  rendering  it  equitable  that  lie  sliould 
do  so  * 

Interest  is  not  recoverable  on  a  Ijill  of  official  fees,  unless 
there  lias  been  a  regular  taxation.! 

The  State  is  liable  to  pay  interest  upon  the  amount  of  a  legal 
appraisement  of  damages  for  land  taken  for  public  use,  after 
demand  made.t 

In  Virginia,  without  deciding  as  a  general  rule  whether 
interest  can  f)roperly  be  allowed  upon  the  arrears  of  an  annuity, 
it  has  been  held  that,  under  the  cii'cumstances  of  the  case,  where 
the  annuity  w\as  to  be  paid  in  pork  nnd  corn  delivered  at 
[383]  a  particular  place,  the  value  of  which  was  to  be  ascer- 
tained by  testimony,  and  in  the  absence  of  any  satisfac- 
tory proof  of  a  demand  at  the  place  where  it  was  to  be  paid, 
or  of  an  agreement  to  dispense  with  such  demand,  and  convert 
it  into  money,  no  interest  should  have  been  allowed  on  the 
arrears.§ 

Difference  between  American  and  English  Cases.  —  There  is 
considerable  conflict  and  contradiction  between  the  English  and 
American  cases  on  this  subject.  But  as  a  general  thing  it  may 
be  said  that  while  the  tribunals  of  the  former  country  restrict 
themselves  generally  to  those  cases  where  an  agreement  to  pay 
interest  can  be  proved  or  inferred,  the  courts  of  the  United 
States,  on  the  other  hand,  have  shown  themselves  more  liberally 
disposed,  making  the  allowance  of  interest  more  nearly  to  de- 
pend on  the  equity  of  the  case,  and  not  requiring  either  an 
express  or  implied  promise  to  sustain  the  claim.  || 

The  leadino;  difference  seems  to  g-row  out  of  a  different  con- 
sideration  of  the  nature  of  money.  The  American  cases  look 
upon  the  interest  as  the  necessary  incident,  the  natural  growth 
of  the  money,  and  therefore  incline  to  give  it  with  the  principal,^ 
while  the  English  treat  it  as  something  distinct  and  independ- 
ent, and  only  to  be  had  by  virtue  of  some  positive  agreement.^ 

*  Breckcnridge  v.  Brooks,  2  A.  K.  Marsh,  ins,  11  Mass.  .504,  and  Pope  v.  Barrett,  1  Ma- 

341  ;  Story  v.  Livingston,  13  Peters,  359.  son,  117,  in  wliich  latter  case  it  was  held  by 

t  Mnmford  v.  Hawkins,  5  Denio,  355.  Mr.   J.   Stor}--,    that   interest   was   due   when 

J  People  V.  Canal  Commissioners,  5  Denio,  money  was  improperly  withheld  after  demand. 

401.  H  See   the  subject  discussed,  and  the  cases 

§  Philips  V.  Williams,  5  Grattan,  259.  collected  and  cited  in  Alabama,  in   Boyd    v. 

II  For  an  examination  of  the  English  and  Gilchrist,  15  Ala.  849. 
American  decisions,  see  Wood  et  al.  v.  Rob- 

1  The  law  in  this  country  annexes  interest  as  an  invariable  incident  in  all  cases  of  default 
to  pay  the  principal  sum,  when  the  debtor  knows  what  that  sum  is,  and  when  he  is  to  jjay  it. 
Spencer  v.  Pierce,  5  R.  I.  63.  This  principle  is  so  well  established  that  it  is  not  necessary  to 
cite  the  numerous  recent  cases  in  which  it  is  illustrated  or  applied. 


CH.    XV.]  COMPOUND    INTEREST.  439 

Compound  Interest.  —  Before  quitting  the  consideration  of 
those  cases  in  which  the  allowance  of  interest  is  entirely  under 
the  control  of  the  court,  we  must  consider  the  subject  of  com- 
pound interest,  and  the  practice  of  annual  rests  in  mercantile 
accounts.  In  regard  to  compound  interest,  or  interest  on  inter- 
est, there  has  existed  much  doubt  and  difference  of  opinion.  It 
was  rigorously  prohibited  by  the  Roman  law  :  NuUo  modo  usuraa 
usurarum  a  debitoribus  exigantur.*  The  English  law  followed  in 
the  same  track.  So  in  an  early  case  in  Chancery,  Lord  Cowper 
held  a  clause  in  a  mortgage,  that  if  the  interest  was  behind  six 
months,  then  it  should  be  accounted  principal  and  compound 
interest,  was  "  void  and  of  no  use ; "  "  that  to  make  interest 
principal,  it  is  requisite  that  it  be  grown  due,  and  then  an  agree- 
ment concerning  it  may  make  it  principal."  f  It  is  not  regarded 
as  within  the  statutory  prohibition  of  usur}^,  but  as  leading  to 
oppression  and  abuse.  So  Lord  Eldon  has  said,  "  There  is 
nothing  unfair  or  perhaps  illegal  in  taking  a  covenant,  orig- 
inally, that  if  interest  is  not  paid  at  the  end  of  the  year,  it  shall 
be  converted  into  principal.  But  this  court  will  not  permit  that, 
as  tending  to  usury,  though  it  is  not  usury."  t  ^ 

The  cases  were  reviewed  at  length  by  Chancellor  Kent,  in  an 
early  case  in  New  York  ;  and  it  was  said,  "  The  cases  and  lan- 
guage in  the  books  are  clear  in  acknowledging  the  rule 
that  even  an  agreement,  made  at  the  time  of  the  original  [384] 
contract,  to    allow  interest  upon   interest  as  it  should 
become  due,  is  not  to  be  supported  ; "  §  and  he  placed  the  objec- 
tion to  the  provision  on  the  ground  of  its  harsh  and  oppressive 
character.     Again  in  a  subsequent  case,  the  same  learned  judge 
laid  down  the  rule  that  "  conij^ouncl  interest  cannot  he  demanded  and 
taken,  except  upon  a  special  agreement  made  after  the  interest  has  become 
due  ;  "  II  and  the  general  principle  has  been  again  and  still  mor 
recently  re-declared.^  ^     In  this  case  it  was  said,  however,  tha 
if  compound  interest  be  voluntarily  paid,  it  cannot  be  recovered 
back.**  So  in  ascertaining  the  amount  due  on  a  note  made  pay- 

*  Cod.  4,  32,  38.  **  See   also,   as   to    demand   of  com])ound 

t  Ossiilstonv.  Yarmouth,  2  Salk.  449.  interest,  Von  Hemert  v.  Porter,  11  Met.  210. 

t  Chambers  v.  Goldwin,  9  Vesey,  271.  In  Connecticut,  a  contract  for  the  payment  of 

§  Connecticut  ?i.  Jackson,  1  J.  Ch.  13.  compound  interest,  made  befoi'c  interest  has 
II  Van   Benschoten  v.  Law.son,  6  J.  Ch.  R.     accrued,  is  to  that  extent  void,  and  will  not, 

313.  unless  in  special  cases,  be  enforced  either  in 

If  Mowry  v.  Bishop,  5  Paige,  98.  law  or  in  equity.     Camp  v.  Bates,  11   Conn. 

1  It  should  be  mentioned  that  no  screen  to  cover  up  a  usurious  demand  under  a  claim  for 
damages  can  he  made  availing.  The  law  sharply  detects  and  relentlessly  strips  off  any  such 
cloak.  Where,  for  instance,  charges  of  2|  per  cent,  commission  were  made  for  six  months' 
advances,  based  on  an  alleged  failure  of  the  defendants  to  furnish  iron  to  be  sold  on  commis- 
sion, the  claim  was  rejected  as  usurious.     Grubb  v.  Brooke,  47  Peun.  485- 

2  So  in  Mason  v.  C'allender,  2  Minn.  350. 


440  INTEREST.  [CH.    XV. 

able  with  interest  annuaHy,  simple  interest  only  is  to  be  com- 
puted ;  *  and  interest  on  the  interest  will  not  be  allowed.!  But  if 
a  new  note  is  given  for  the  interest,  it  is  thereby  converted 
into  capital,  and  it  may  be  given  with  interest! 

Where  Allowed.  —  An  exception  has  been,  however,  intro- 
duced by  the  usages  of  modern  trade  to  the  general  rule  which 
denies  compound  interest.  As  between  merchants  upon  their 
mutual  accounts  it  is  the  custom  to  cast  interest  upon  the  sev- 
eral items,  and  to  strike  a  balance  at  the  end  of  the  year  of  the 
items  of  principal  and  those  of  interest,  and  to  carry  the  footing 
of  the  two  to  a  new  account,  as  forming  the  first  item  of  prin- 
cipal for  the  ensuing  year.  In  this  manner,  yearly  rests,  as 
they  are  called,  have  for  a  long  time  been  made  and  acquiesced 
in  by  the  mercantile  world.§  But  after  the  mutual 
[385]  trade  and  dealings  have  ceased,  the  right  to  make  annual 
rests  ceases  ;  and  in  the  absence  of  any  specific  agree- 
ment, the  creditor  is  allowed  simple  interest  only  on  the  balance 
of  his  account ;  the  right  to  make  the  yearly  rests  growing  out 
of  the  mutuality  of  the  debts  and  credits ;  and  the  allowing  of 
interest  on  each  side.^ 

Another  exception  to  the  general  rule  denjang  compound 
interest  grows  out  of  the  conduct  of  the  defendant ;  where  that 
is  grossly  delinquent  or  intentionally  contrary  to  his  duty,  com- 
pound interest  is  sometimes  inflicted  by  way  of  punishment.** 
Where  partial  payments  have  been  made  in  cash,  or  by  rents 
and  profits,  or  otherwise,  the  payments  are  to  be  first  applied  to 
the  satisfaction  of  the  interest  then  due,  and  the  balance  only  is 
to  go  towards  the  reduction  of  the  principal.ft 

Interest,  when  given  as  Damages.  —  In  the  cases  which  we 
have  been  considering,  interest  is,  as  we   have  seen,  a  matter 

487;    Rose  v.   City  of  Bridgeport,    17   Conn,  ncdy,  3   Wash.  C.   C.  350;    Von   Hemert  v. 

243.     In  Louisiana,  compound  interest  is  pro-  Porter,  11  Met.  210. 

hibited  by  the  Code  :  "  Interest  upon  interest  Tf  Denniston  v.  Inibree,  3  Wash.  C.  C.  R. 
cannot  be  recovered,  unless  it  be  added  to  the  402  ;  Von  Hemert  v.  Porter,  11  Met.  210. 
principal  and  by  another  contract  made  a  new  **  1  Vesey,  92  ;  Hopkins  R.  424  ;  Acker- 
debt.  No  stipuhition  to  that  effect  in  the  orig-  man  v.  Emott,  4  Barb.  S.  C.  R.  G2G. 
inal  contract  is  valid."  —  Art.  1934.  The  ft  Dean  r.  Williams,  17  Mass.  417  ;  Pay  v. 
whole  subject  of  interest  is  codified  in  that  Bradley,  1  Pick.  167;  Reed  v.  Reed,  10  Pick. 
State.  In  Indiana,  see  Miles  v.  Board  of  Com-  398.  In  New  Hampshire  it  was  said,  in  an 
mis'rs,  8  Blatehford,  158.  early  case  (1818),  that  on  a  note  pa_yal)le  with 

*  Hastings  v.  Wiswall,  8  Mass.  455  ;  Dean  interest  annually,  interest  at  the  rate  of  six 

V.  Williams,  17   Mass.  417  ;  Von  Hemert  v.  per  cent,  per  annum   should  be  cast  on  the 

Porter,  11  Met.  210  ;  Doe  v.  Warren,  7  Greenl.  principal,  and  interest  on  the  annual  interest 

48.  in   the  nature  of  damages  for  its  detention, 

t  Ferry  v.  Ferry,  2  Cush.  98.  from   the  time  it  became  payable.     Pierce  v. 

i  Wilcox  V.  Howland,  23  Pick.  1G7.  Rowe,   1   N.  II.  179. '  I  do  not  know  if  this 

§  Eaton  r.  Bell,  5  B.  &  Aid.  34;  Stough-  has  been  adhered  to  in  that  State;  it  is  cer- 

ton  V.  Lynch,  2  J.  Cli.  214  ;  Barclay  v.  Ken-  tainly  not  the  general  rule. 


CH.    XV.]  WHEN    GIVEN   AS    DAMAGES.  441 

resting  in  the  control  of  the  court,  and  allowed  or  disallowed 
upon  certain  rules  of  law.  In  these  it  is  said  to  be  given  as  m- 
tercsl ;  we  have  now  to  consider  a  class  of  cases  where  it  is  to  be 
settled  by  the  verdict  of  the  jury,  as  we  have  already  seen  inti- 
mated ;  and  here  it  is  given  more  strictly  as  damages.^ 

"  There  are  two  classes  of  cases,"  says  the  Supreme  Court  of 
New  Hampshire,  "in  Avhich  interest  may  be  recovered.  The 
first  is  where  it  is  incident  to  the  debt,  founded  on  the  agree- 
ment of  the  parties,  and  is  a  legal  claim,  and  the  court  are 
bound  to  allow  it.  The  other  class  is  where  the  interest  may 
be  allowed  by  a  jury  in  the  nature  of  damages."* 

This  is  generally  so  in  actions  of  tort  as  trover  or  trespass 
for  taking  goods,  where  interest  is  allowed  at  the  discretion  of 
the  jury.  So  in  an  action  of  trespass,  the  Supreme  Court  of 
New  York  said,  "  The  plaintiff  ought  not  to  be  deprived  of  his 
property  for  years  without  compensation  for  the  loss  of  the  use 
of  it;  and  the  jury  had  a  discretion  to  allow  interest  in 
this  case  as  damages.  It  has  been  allowed  in  actions  of  [386] 
trover,  and  the  same  rule  applies  in  trespass  when 
brought  for  the  recovery  of  property."!  So  in  Kentucky,  in 
case  of  a  fraudulent  refusal  to  convey  land.t  And  so  declared 
also  in  North  Carolina  in  cases  of  trover  and  trespass.§ 

In  Louisiana,  it  has  been  said  that  the  allowance  of  interest 
as  damages,  ex  dellctu,  from  the  date  of  the  act  complained  of,  is 
unauthorized  by  law.||  This  is  certainly  adverse  to  the  general 
current  of  our  authorities,  and,  as  it  appears  to  me,  to  the  better 
reason  of  the  matter;  for  if  the  jury  are  to  have  an}^  discretion 
at  all  in  such  cases,  it  could  hardly  be  refused  them  in  regard 
to  the  allowance  of  interest. 

The  discretionary  rule  has  been  applied  in  many  cases  of  con- 
tract.    So  in  an  action  on  an  agreement  to  deliver  wheat,  the 

*  Mcllvainei;.  Wilkins,  12  N.  H.  475.  for   negligence,  Thomas   v.  Weed,  14  J.  K. 

t  Beals   V.  Gucrnsev,  8  J.  R.  446.     So   in  255. 

trover,  H^^de  v.   Stone,  7  Wend.  354 ;  Bissel  \  Handley  v.  Chambers,  1  Littcll's  R.  358  ; 

V.  Hopkins,  4  Cow.   53  ;  Kennedy  v.   Strong,  ante,  193. 

14  J.  R.    128;    Hallett  v.   Novion,    14  J.   R.  §  Dcvcrcux  i;.  Bnrgwin,  11  Iredell,  490. 

273,  and   16   J.  R.   327.      And   in   replevin,  ||  Green  u.  Garcia,  3  La.  Ann.  R.  702. 
Rowley  v.  Gibbs,  14  J.  R.  385.     So  in  case 


) 


1  Sec,  with  regard  to  the  allowance  of  interest  in  trover,  page  491,  post.  Interest,  when  not 
specifically  claimed  in  the  com])laint,  cannot  be  considered  as  part  of  the  debt,  and  can  only  be 
recovered  as  damages.  March  v.  Wright,  14  III.  248.  But  this  rule  is  applicable  only  to 
interest  due  at  the  time  the  bill  is  tiled.  When  the  interest  accrues  subsecpicntly,  it  is  the 
practice  of  the  court,  upon  further  directions,  to  order  that  the  interest  be  computed,  although 
there  be  no  prayer  in  the  bill  to  that  effect.  Godwin  v.  McGehee,  19  Ala.  468.  In  an  action 
against  a  town  for  an  injury  caused  by  a  defective  highway,  no  interest  can  be  added  by  the 
jury  to  the  sum  found  as  damages.  Sargent  v.  Hampden,  38  Me.  581.  In  Georgia,  m  tres- 
pass for  carrying  away  slaves,  interest  on  the  hire  of  the  slaves  is  allowed  as  matter  of  law. 
Brown  v.  Southwestern  R.  R.  Co.  36  Geo.  377. 


442  INTEREST.  [CH.    XV. 

Vcalue  of  the  wheat  with  interest  thereon  was  given*  ^  And  the 
Supreme  Court,  on  the  argument  of  the  case,  said,  "The  judge 
who  tried  the  cause  did  not  direct  the  jimj  to  allow  interest  on 
the  sum  which  they  should  find  the  wheat  to  be  worth  after  the 
demand  ;  but  in  ascertaining  the  plaintift''s  damages,  he  observed 
that  they  Diiglit  if  they  thought  proper  from  the  nature  of  the  . 
transaction,  include  interest  as  an  item  in  making  up  the  amount 
of  damages.  There  was  not  in  this  remark  any  direction  con- 
trary to  law." 

"  Interest,"  said  Washington,  J.,  on  the  Pennsylvania  circuit, 
"is  a  question  generally  in  the  discretion  of  a  jury," f 

So,  in  two  actions  against  the  master  of  a  ship  for  the  non- 
delivery of  goods,  it  was  held  in  New  York,  that  the  jury  might 
give  damages  if  the  conduct  of  the  defendant  was  improper,  /.  e. 
where  fraud  or  gross  misconduct  could  be  imputed  to  him ;  but 
it  appearing  that  such  was  not  the  fact,  it  was  not  allowed  ;  and 
the  court  in  the  former  case  said,  "  Interest  is  not  in  every  case 
and  of  course  recoverable,  because  the  amount  of  the  loss  is 
unliquidated,  and  sounds  in  damages  to    be  assessed  by  the 

jury-r 

[387]  Interest  in  the  Action  of  Debt.  —  In  the  action  of 
debt,  interest  is  given,  as  we  shall  see,  in  some  cases. 
But  as  a  general  rule  it  must  be  separately  assessed,  as  damages 
for  its  detention.§  In  England,  where  a  statute  authorized  a 
dock  company  to  bring  debt  for  calls  of  payments  to  be  made 
on  the  shares  of  the  company,  interest  not  having  been  included 
as  part  of  the  money  due  for  calls,  and  not  being  declared  on  in 
a  separate  count,  but  having  been  allowed  by  the  jury,  it  was 
held  that  they  might  rightly  give  it ;  and  Tindal,  C.  J.,  said, 
"  When  the  act  of  Parliament  gives  the  action  of  debt,  it  gives 
all  that  by  the  conunon  law  is  incident  to  that  form  of  action, 
namely,  damages  for  the  detention  of  the  debt."||  But  Maule, 
J.,  concurring  with  the  chief  justice,  said,  "  The  statute  is  per- 

*  Dox  et  al.  v.  Dey,  3  Wend.  356.  Hosier,  6  Mod.  167  ;  Sayre  v.  Austin,  3  Wend. 

t  Gilpins  V.  Consequa,  Peters'  C.  C.  R.  86 ;  496  ;    North    River    Meadow    Co.   v.    Christ 

Willing  y.  Consequa,  Ibid.  172.  Church,  2  Zabriskie,  425;  Wilmans  v.  Bank 

X  Watkinson    v.   Loughton,    8   J.   R.  213 ;  of  Illinois,  1  Oilman,  667. 
and  Amory  w.  McGregor,  15  J.  R.  24.  ||  Southampton   Dock    Co.  v.   Richards,    1 

§  1   Saund.  201,  a,  note  n;    Osbourne    v.  Mann.  &  Granger,  448. 

1  So  in  actions  against  carriers  and  warehousemen  for  failure  to  deliver  goods.  Richmond 
V.  Bronson,  5  Denio,  55;  Schwerin  v.  McKie,  5  Robertson  (N.  Y.  Superior),  404.  So  in 
assumpsit  founded  on  a  sale,  where  the  price  is  paid  in  advance.  Bickell  v.  Colton,  41  Miss. 
368. 

'^  In  an  action  against  a  carrier  for  injuries  to  goods  in  his  charge,  the  jury  may  allow  in- 
terest, but  it  is  error  to  instruct  them  to  do  so.  Black  v.  Camden  and  Amboy  R.  R.  Co.  45 
Barb.  (N.  Y.)  40. 


en.    XV.]  INTEREST    IN    ERROR.  443 

fectly  clear  as  to  what  slmll  be  stated  in  tlic  declaration  ;  and 
under  that  statement  interest  will  form  part  of  the  debt  to  be 
recovered."  * 

In  a  case  where  the  declaration  stated  that,  on  the  ISth  of 
June,  1832,  the  defendant  covenanted  to  pay  the  plaintiff  £270, 
with  interest,  on  the  15th  of  December  then  next,  and  that 
there  was  due  the  said  sum  of  <£2T0  and  interest,  in  all  £300,  it 
concluded  to  the  plaintiff's  damage  of  £10.  But  the  judge  who 
tried  the  cause  would  only  allow  the  verdict  to  be  taken  for  the 
£270  and  interest,  £276  155.;  all  the  rest  being  damages  for 
the  detention,  and  the  plaintiff  having  laid  those  damages  at 
£10  could  not  recover  more.t 

We  have  already  seen.J  that  in  certain  cases  of  contract, 
where  the  breach  appears  to  be  fraudulent,  interest  and  some- 
times even  substantial  damages,  are  held  to  be  properl}^  charge- 
able. 

Interest  in  Error.  —  Interest  is  sometimes  given  in  Error, 
by  way  of  damages.  In  an  early  case,§  on  affirmance  of  judg- 
ment in  the  King's  Bench  on  error,  a  rule  was  obtained  to  show 
cause  why  the  master  should  not  compute  interest,  and 
add  it  to  the  costs,  on  the  ground  of  an  old  statute,]]  [388] 
which  enacted  on  a  writ  of  error  being  brought,  and 
judgment  affirmed,  the  person  against  whom  it  is  sued  out  shall 
recover  his  costs  and  damages.  And  it  was  held  that  "  interest 
ouo-ht  to  be  the  measure  of  damao;es." 

The  principle  of  this  statute  has  been  fixed  in  American  legis- 
lation. By  the  judiciary  act  of  the  United  States,^  the  Su- 
preme Court  is  authorized,  in  case  of  affirmance  of  any  judg- 
ment or  decree,  to  award  to  the  respondent  just  damages  for  his 
delay.  And  by  the  rules  of  the  same  court,**  in  cases  where 
the  suit  is  defended  for  mere  delay,  damages  are  to  be  awarded 
at  the  rate  of  ten  per  centum  per  annum  on  the  amount  of  the 
judgment,  to  the  time  of  the  affirmance  thereof  Where  there 
is  a  real  controversy,  the  damages  are  to  be  at  the  rate  of  six 
per  cent,  per  annum  only.  And  in  both  cases,  the  interest  is  to 
be  computed  as  part  of  the  damages.  It  is  therefore  entirely 
for  the  decision  of  the  court,  whether  any  damages,  or  interest 

*  Qurere,  then,  if  it  was  here  allowed   as  §  Zink  ?;.  Langtou,  Douglass,  751,  in  notes, 

part  of  the  debt,  or  as  the  damages  1      See  |i  3  Hen.  VII."c.  10. 

also,  London  and  Brighton  Railway  Company  T"  17S9,  c.  20,  §  2.3. 

V.  Fairclough,  3  Scott  New  R.  69  and  88.  **  Made  in  February  term,  1S03,  and  Feb- 

t  Watkins  v.  Morgan,  6  Car.  &  P.  661.  ruary  term,  1807. 

t  Ante.  190,  219. 


444  INTEREST.  [CH.    XV. 

as  a  part  thereof,  are   to  be  allowed    or  not,  in  cases  of  affirm- 
ance.* 

The  same  prmciple  has  been  followed  in  New  York,  where 
it  is  provided  by  statute,!  that  "If  upon  writ  of  error,  the 
judgment  be  affirmed,  or  the  writ  be  discontinued  or  quashed, 
or  the  plaintiff  in  error  be  non-suited,  the  defendant  in  error 
shall  recover  costs,  and  also  damages  for  the  delay  and  vexation, 
to  he  assessed  in  ilie  discretion  of  the  court  before  whom  the  writ 
was  returnable."  The  limit  of  discretion  under  this  statute 
is  legal  interest.  The  allowance  of  damages,  however,  in  these 
cases  rests  entirely  in  discretion ;  and  so,  where  the  action 
was  in  tort,  the  Court  of  Errors  refused  it.J^     It  was  allowed, 

however,  in  another  case,  on  a  judgment  in  trover.§     But 
[389]   this  branch  of  the   subject  rather  belongs  to  the  head  of 

statutes  regulating  damages,  which  w^e  shall  elsewdiere 
consider. 

Interest  on  Judgments.  —  The  allowance  of  interest  on  judg- 
ments generally  has  been  a  subject  of  much  discussion.  In  Eng- 
land, the  doubt  is  solved  by  a  recent  statute,  which  declares  that 
every  judgment  debt  shall  carry  interest  at  the  rate  of  four  per 
centum  per  annum,  from  the  time  of  entering  up  the  judgment, 
or  from  the  time  of  the  passage  of  the  act  in  cases  of  judgment 
then  entered  up  and  not  carrying  interest,  until  the  same  shall 
be  satisfied ;  and  such  interest  may  be  levied  under  a  writ  of  ex- 
ecution on  such  judgment.|| 

In  New  York,  it  has  been  decided  that  interest  is  recoverable 
in  an  action  of  debt  on  judgment,  whether  the  orginal  demand 
carried  interest  or  not.^^     But  in  debt  on  judgment  for  a  tort, 

*  Boyce's  Executors  v.  Grundy,  9  Peters,  rest  rather  upon  arbitrary  discretion,  practice, 
275  ;  Himley  v.  Rose,  5  Crauch,  313 ;  Santa  or  precedent,  than  any  principle  which  con- 
Maria,  10  Wiieat.  431-442.  forms  to  our  general  notions  of  justice."  Klock 

t  2  R.  S.  618,  §  33.  V.  Robinson,  22  Wend.  157  and  160. 

I  Gclston  V.  Hoyt,  13  J.  R.  561.  II  1  &  2  Vict.  c.  110,  §  17.     See  Fisher  v. 

§  Bissell  V.  Hopkins,  4  Cowen,  53.     In  the  Dudding,  3   Scott  N.  Rep.   516.      See  also, 

same  State  it  has  been  said  that,  "  the  judicial  Crafts  v.  Wilkinson,  4  Q.  B.  74. 

doctrine  of  allowing  and  disallowing  interest  T[  Klock  v.  Robinson,  22  Wend.  157,  whei"e 

on  judgments,  whether  on  affirmance  in  error,  the  English  cases  are  reviewed, 
or  in  other  cases,  seems  in  some  respects  to 

1  See  Hoard  v.  Garner,  3  Sandf  (N.  Y.)  179. 

2  So  generally  in  the  States  of  the  Union  interest  is  now  allowed  on  a  judgment  irres])ective 
of  the  nature  of  the  original  cause  of  action,  as  damages  for  the  default  of  a  debtor  in  withhold- 
ing another's  money.     See  Booth  v.  Ableman,  20  Wis.  602. 

And  a  creditor  by  judgment  recovered  in  a  foreign  court,  who  comes  in  under  a  creditor's 
bill  and  proves  his  demand,  is  entitled  to  interest  on  the  amount  of  the  judgment  from  the 
time  it  was  rendered,  although  it  does  not  appear  whether  the  judgment  bears  interest  by  the 
law  of  the  country  where  it  was  rendered,  or  not.     Nelson  v.  Felder,  7  Rich.  (S.  C.)  Eq.  395. 

It  is  to  be  observed  that  a  ditference  maj'  sometimes  exist  between  the  rate  of  interest  on 
the  original  contract  and  the  rate  on  the  judgment.    Thus,  in  Illinois,  A  made  his  jjromissory 


CH.    XV.]  UPON    JUDGMENTS.  445 

interest  is  recoverable  only  from  the  date  of  the  judgment,  and 
not  from  the  finding  of  the  verdict.*  Where  the  judgment  is 
rendered  on  contract,  it  can  in  New  York,  by  express  statute,  be 
collected  on  execution.!  ^ 

How  far  interest  is  recoverable  under  the  penalty  of  a  bond, 
we  shall  have  occasion  to  examine  in  the  next  chapter. 

Interest  after  Payment  of  Principal. — It  has  never  been 
doubted,  that  where  interest  is  made  payable  before  the  princi- 
pal, suit  can  be  brought  for  the  non-payment  of  the  interest 
alone  ;t^  but  an  important  question  has  been  presented,  how  far 
an  action  can  be  maintained  for  interest  after  the  payment  of 
the  principal.  In  New  York,  it  has  been  decided  that  where 
interest  is  not  stipulated  for  in  the  contract,  but  is  recoverable 
merely  as  damages,  a  creditor  is  precluded  from  sustaining  an 
action  for  its  recovery  after  accepting  the  principal;  but  that 
where  interest  is  stipulated  for  in  the  contract,  suit  may  be 
brought  for  it,  although  the  principal  has  been  paid.§ 

So,  payment  of  the  amount  of  principal  money  clue  from  a 
debtor  to  his   creditor,  will  not  necessarily  prevent  an 
action  for  the  amount  of  interest.     Kmade  generally,  it  [390] 
applies  first  to  extinguish  the  interest,  and  the  balance 
may  be  sued  for  as  the  principal. || 

It  seems  well  settled  that  where  an  attachment  or  injunction 

*  Lord  V.  The  Mayor  of  New  York,  3  Hill,  J  Cooley  v.  Eose,  3  Mass.  221. 

426.  §  Fake  v.  Eddy's  Ex'rs,  15  Wend.  76. 

t  Sayre  v.  Austin,  3  Wend.  496;  2  E.  S.  ||  People   v.  County  of  New  Y^ork,  5  Cowen, 

364.      It  had  been  previously  decided  other-  331. 
wise.     Watson  v.  Fuller,  6  J.  R.  283. 


note  to  B  for  five  hundred  dollars  with  interest  at  ten  per  cent,  after  maturity.  After  the  note 
became  <lue,  an  action  was  bi-ought  against  the  maker  by  an  indorsee  who  recovered  judgment. 
The  maker  being  insolvent,  the  indorsee  brought  a  second  action  against  his  indorser,  and 
introduced  in  evidence  the  record  of  the  previous  judgment,  claiming  nevertheless  to  recover 
ten  per  cent,  on  the  face  of  the  note.  But  the  court  held  that  only  interest  on  the  judgment  at 
six  per  cent,  could  be  recovered.    Corgan  v.  Frew,  39  111.  31. 

In  an  action  of  assumpsit,  on  a  promise  to  pay  the  amount  of  a  judgment  from  which 
defendant  had  been  discharged  under  the  insolvent  debtors'  act :  Held,  that  tlie  true  measure  of 
damages  was  the  amount  of  the  debt,  interest,  and  costs,  on  the  day  of  the  entry  of  the  judg- 
ment, with  interest  on  the  amount  from  the  day  of  tlie  entry  to  the  trial.  Gatewood  v.  Closes, 
5  Richardson  (S.  C.)  Law,  244.  As  to  the  allowance  of  interest  on  the  costs  on  a  judgment, 
see  Rogers  v.  Burns,  27  Peun.  St.  .525. 

1  On  all  judgments  in  civil  cases  in  the  United  States  district  or  circuit  courts,  interest  is 
allowed,  wherever,  l)y  the  law  of  the  State  in  which  such  circuit  or  district  court  is  held,  inter- 
est may  be  levied  under  execution  on  judgments  recovered  in  the  State  courts.  Laws,  1842, 
§  8,  ch.  188  (5  U.  S.  Stat,  at  Large,  518). 

-  Upon  a  note  for  money  payable  at  a  future  pay  day,  whether  in  an  entire  form  or  by 
instalments,  "  with  interest  to  be  paid  annuallij,"  the  interest  which  may  have  accrued  in  any  year 
may  be  recovered,  if  sued  for  before  the  pay  day  of  the  principal. '  Bannister  v.  Roberts,  35 
Me.  75. 


446  INTEREST.  [CH.    XV. 

is  laid  on  ci  party  liable  to  pay  interest,  it  ceases  running  till  the 
legal  impediment  is  removed.*^ 

*  Willings  V.  Consequa,  Peters'  C.   C.  R.  See  also,  Kellog  v.  Hickok,  1  Wend.  521  ; 

171,  321  ;  Fitzgerald  v.  Caldwell,  2  Dall.  215;  Baiiibridge  v.  Wileocks,  Baldwin's  C.  C.  R. 

2    Yates,   280  ;    Osborne   v.   U.    S.   Bank,   9  536  ;  Legrange  v.  Hamilton,  4  T.  R.  613  ;  2 

Wheat.  738  ;  Stevens  v.  Barringer,  13  Wend.  H.  Black.  144. 
639  ;  Lc  Braithewait  v.  Halsey,  4  Halsted,  3. 

1  In  California,  where  the  rates  of  interest  may  be  fixed  by  the  parties  themselves  in  their 
contraets,  but  is  ten  per  cent,  in  the  absence  of  any  stipulation,  that  rate  and  no  more  is  re- 
coverable as  damages  for  the  detention  of  money  in  an  action  on  the  injunction  bond,  when  an 
officer  is  enjoined  from  paying  it  over.     Lally  v.  Wise,  28  Cal.  539. 


CHAPTER  XVI. 

OF   PENALTIES  ;     LIQUIDATED    DAMAGES  ;     AND    THE    COMMON-LAW    ACTION 

OF    DEBT. 

Debt  and  Covenant.  —  Debt  on  Bond.  —  Amount  of  recovery  within  tlie  Penalty. 
—  Assignment  of  Breaches.  —  Liquidated  Damages.  —  Ne-Exeat  Bonds. — 
Bonds  to  resign  Livings.  —  Recovery  beyond  the  Penalty. 

We  have  just  terminated  the  consideration  of  a  large  class  of 
cases,  in  which  the  damages  are  in  no  wise  determined  by  the 
agreement  of  the  parties.  We  now  come  to  another  class,  where 
the  contracting  parties  fix  or  liquidate  the  amount  that  shall 
furnish  the  measure  of  compensation  in  case  of  non-fulfillment 
of  the  agreement,  either  in  the  shape  of  a  penalty,  or  of  stipu- 
lated damages.  The  questions  arising  under  this  branch  of  our 
subject  are  generally  presented  in  one  of  the  two  common-law 
actions  known  as  debt  and  covenant;  but  we  shall  endeavor  to 
consider  the  matter  at  large,  without  confining  ourselves  strictly 
to  either  of  these  technical  forms. 

At  the  same  time  it  is  impossible  altogether  to  dismiss  them 
from  view.  The  common-law  action  of  debt  is  applicable  in  all 
cases  where  a  sum  certain  is  due,  whether  the  contract  be  by 
parol  under  seal,  or  of  record;  while  covenant  is  the  remedy  for 
breaches  of  all  contracts  under  seal,  whether  for  sums  certain  or 
uncertain.  And  owing  to  this  arbitrary  division  of  actions,  the 
rules  of  damages  conform  in  many  cases  rather  to  the  remedy 
than  the  right ;  we  must  therefore  not  lose  sight  of  this  tech- 
nical distinction. 

Debt  on  Bond.  —  Of  all  forms  of  debt,  that  of  debt  on  bond 
has  latterly  been  the  most  frequent.  In  the  early  periods  of  our 
jurisprudence  debt  was  the  common  action  for  goods  sold  and 
delivered,  and  for  work  and  labor  done  ;  but  it  was  sub- 
sequently to  a  great  extent  superseded  by  the  proceeding  [392] 
in  assumpsit.*  It  is  true,  as  a  general  rule,  that  in  the 
action  of  debt,  which  is  brought  for  the  recovery  of  a  sum  cer- 

*  Ante,  225 ;   Kuddcr  i'.  Price,  1  H.  BL  547. 


448  DEBT    ON    BOND.  [CH.    XVI. 

tain,  no  damages  can  be  claimed  on  accomit  of  the  debt  itself, 
this  being  recoverable  in  numcro ;  but  damages  are  given  on  ac- 
count of  the  detention  of  the  debt.  In  an  action  of  debt  on 
bond,  therefore,  only  nominal  damages  are  assessed ;  nor  is  it  in 
general  necessary  to  have  them  assessed  to  the  amount  even  of 
what  is  due  for  interest,  because  as  under  the  verdict  the  plain- 
tiff is  entitled  to  the  whole  penalty ;  this,  which  is  double  the 
sum  mentioned  in  the  condition,  is  usually  sufiicient  to  cover 
what  is  due  for  interest.  But  this  subject  will  be  more  fully 
noticed  in  another  part  of  this  chapter. 

The  form  of  the  obligation  or  hond  of  the  English  law,  is  tech- 
nical and  peculiar.  The  obligor  hinds^  or  obliges  himself  to  pay 
a  certain  sum  of  money  at  a  certain  time,  to  the  obligee. 
This,  if  under  seal,  would  be  a  single  bond,  or  simplex  obligatio  ; 
and  would  only  differ  from  a  note,  in  being  under  seal,  and  not 
negotiable.  But  in  the  bond  we  find  a  clause  appended,  declar- 
ing that  the  previous  obligation  shall  be  void  on  the  payment 
of  some  lesser  sum  of  money,  or  the  performance  of  some  par- 
ticular act.  The  latter  part,  or  condition,  of  the  bond,  is  that 
which  discloses  the  real  nature  of  the  contract,  and  contains  its 
essence ;  the  former  ^ixxi  is  the  jienaltg.*  Penal  obligaUons  are 
well  known  to  other  systems  of  law  besides  our  own  ;  f  but  the 
precise  form  of  contract  by  which  an  absolute  obligation  is  at 
first  declared,  and  this  converted  into  a  mere  penalty  by  the 
addition  of  a  subsequent  condition,  is,  I  believe,  entirely  pecul- 
iar to  the  English  law. 

From  this  form  of  obligation  or  contract,  various  results,  flow- 
ing from  the  technical  rules  of  the  common  law,  were  deduced 
by  the  founders  of  our  jurisprudence.  If  the  condition  was  not 
strictly  complied  with,  as  in  regard  to  the  payment  of  money  on 
a  day  certain,  the  moment  the  day  was  passed  the  penalty  be- 
came the  debt,  and  was  at  law  recoverable ;  and  neither  pay- 
ment nor  tender  after  the  day  would  avail,  because  a 
[393]  condition  once  broken  was  gone  forever.  If  the  condi- 
tion were  to  do  anything  other  than  pay  money,  and 
were  not  fidfilled,  the  penalty  again  became  the  debt,  and  was 
recoverable  without  any  reference  whatever  to  the  actual  dam- 
ages incurred.  Hence  many  difficulties  arose.  Lord  Kaimes 
says,$  that  the  bond  was  introduced  originally  to  evade  the  com- 
mon law  of  England,  which  prohibited  the  taking  interest  for 
money.     Whatever  reason  led  to  its  introduction,  certain  it  is, 

*  Black.  Com.  ii.  ch.  20,  p.  340.  %  Trin.  of  Equity,  book  iii.  ch.  ii.  p.  279. 

t  Fothier,   Tniite  des  Obligations,  part  ii. 
ch.  V.  des  Obligation  Penaies. 


CH.    X\I.]  DAMAGES   WITHIN   THE   PENALTY.  449 

that  its  peculiar  form  has  occasioned  infinite  doubt  and  contra- 
diction. In  regard  to  our  present  subject,  we  shall  fird  consider 
what  sum  can  be  recovered  under  or  within  the  penalty. 
Secondli/,  how  by  assigning  breaches,  that  sum  is  arrived  at. 
Thh'dlf/,  when  the  penalty  is  considered  as  liquidated  damages. 
And  lasll^,  what  can  be  recovered  beyond  the  penalty. 

Damages  Within  the  Penalty.  —  And  first  as  to  the  damages 
that  may  be  recovered  wider  or  tvithin  the  jDcnalty. 

The  action  of  debt,  as  has  been  said,  is  the  usual  remedy  pro- 
vided by  the  common  law  for  the  recovery  of  a  sum  certain. 
And  in  an  action  of  debt  for  condition  broken,  the  amount  of 
the  plaintiff's  recovery  was  originally,  as  has  also  been  said,  the 
penalty  ;  nor  could  the  action  be  relieved  against,  either  by  pay- 
ment or  tender :  no  defense  would  avail  but  a  release  under  seal. 
And  this  severe  rule  of  the  common  law  was  only  mitigated  by 
the  practice  of  the  courts  of  chancery,  which  interposed  and 
would  not  allow  a  man  to  take  more  than  in  conscience  he 
ought.*  It  became  early  settled  in  equity  that  the  condition  of 
the  bond  was  the  agreement  of  the  parties,  and  as  such  the 
obligor  was  relieved  from  the  penalty.!  Lord  Somers  said,  $ 
"  that  where  the  party  might  be  put  in  as  good  a  plight  as 
wdiere  the  condition  itself  was  literally  performed,  there  the 
Court  of  Chancery  would  relieve,  though  the  letter  of  it  were 
not  strictly  performed,  as  payment  of  money,  etc.  But  where  the 
condition  was  collateral  and  in  recompense,  and  no  value 
could  be  put  on  the  breach  of  it,  then  no  relief  could  be  [394] 
had  for  the  breach  of  it."  ^  This  practice  was  followed  by 
the  common  law  tribunals,  which  ordered  the  proceedings  to  be 
stayed  upon  bringing  into  court  the  principal  debt,  interest, 
and  costs.§  Finally,  this  discretionary  power  was  confirmed  by 
a  statutor}^  regulation,  which  provided  that  in  actions  on  bonds 
with  penalties,  the  defendant  might  bring  in  the  principal  debt, 
interest,  and  costs,  and  be  discharged.|| 

*  Black.  Com.  book  ii.  ch.  20,  p.  341.     For  820.    Sec  Pothier,by  Evans,  on  Penal  Obliga- 

cases    of    tbis   description    in    chancery,   see  tions,  appendix,  and  Fonblauque's    Treatise 

Hale  V.  Tbomas,  1  Vern.  349,  and  Steward  v.  on  Ecpnty. 

Riimball,  2  Vern.  509  ;  also,  Sbow.  Par.  Cas.  X  Prec.  in  Ch.  487. 

15  ;  Bond  and  Penalty,  Abr.  Yj[.  91,  92.  §  Gre.ng's  case,  2   Salk.  596;  Anon.  6  Mod. 

t  Acton  f.  Pierce,  2  Vern.  480;  Cannel  v.  11  ;  Butler  v.  Rolf,  Ibid.  25;  Anon.  Iliid.  29; 

Buckle,  2  P.  Wms.   243 ;  Watkyns   v.   Wat-  Burridge  v.  Fortescue,  Ibid.  60,  and  Ireland's 

kyns,  2  Atk.  97  ;  Bislioi)  r.  Church,  2  Ves.  case,  Ibid.   101.      In  Burridgc  v.  Fortescue, 

371  ;  Parks  v.  Wilson,  10  Mod.  515;  Ilobson  the  court  said,  "It  is  an  equitable  motion,  to 

V.  TrcA'or,  2  P.  Wms.  191  ;  Chilliner  v.  Chilli-  be  relieved  against  the  penalty." 

ner,  2  Ves.  528;  Collins  v.  Collins,  2.  Burr.  ||  4  Anne,  ch.  16,  §§  12  and  13. 

1  Courts  of  equity  will  not  relieve  against  stipulated  damages,  Williams  v.  Green,  14  Barb. 
(Ark.)  315 ;  Westerman  v.  Means,  12  Penn.  St.  97. 
29 


450  DEBT    ON   BOND.  [CH.    XVI. 

This  legislation  has  been  followed  in  this  country.  In  New 
York,*  it  is  declared  that  in  actions  on  penalty  bonds,  the  plain- 
tiff may  plead  payment  of  the  debt  made  before  suit  brought, 
though  not  according  to  the  condition ;  and  that  after  suit 
brought,  the  defendant  may  bring  debt,  principal,  and  costs  into 
court,  and  that  thereupon  the  action  shall  be  discontinued. 
Speaking  of  the  English  original  of  this  statute,  Lord  Mansfield 
said,  — t 

"  That  it  was  made  to  remove  the  absurdity  which  Sir  Thomas  More  unsuc- 
cessfully attempted  to  persuade  the  judges  to  remedy  in  the  reign  of  Hen.  VIL ; 
for  he  summoned  them  to  a  conference  concerning  the  granting  relief  at  law, 
after  the  forfeiture  of  bonds,  upon  payment  of  principal,  interest,  and  costs,  and 
when  they  said  they  could  not  relieve  against  the  penalty,  he  swore  by  the  body 
of  God  he  would  grant  an  injunction." 

And  in  another  case,  t  he  said,  — 

"  It  was  extraordinary,  that  after  it  was  settled  in  equity  that  the  forfeiture 
might  be  saved  by  the  performing  the  intent,  and  that  this  was  the  nature  of  a 
bond,  the  courts  of  law  did  not  follow  equity,  but  still  continued  to  do  injustice 
as  of  course,  and  put  the  parties  to  the  delay  and  expense  of  setting  it  right 
ehewhere  as  of  course."  § 

Assignment  of  Breaches.  —  Notwithstanding  this  stat- 
[395]  ute,  however,  it  is  apparent  that  great  injustice  might  be 
committed  ;  because  the  plaintiff  was  entitled  to  judg- 
ment for  the  whole  amount  of  the  penalty,  and  the  defendant 
could  only  be  discharged  by  addressing  himself  to  the  equitable 
consideration  of  the  court.  Hence  was  imposed  the  obligation 
to  assign  breaches.  By  a  statute  enacted  at  nearly  the  same  time,|| 
it  was  declared  "  that  in  all  actions,  etc.,  upon  any  bond  or 
bonds,  or  on  any  penal  sum  for  non-performance  of  any  cove- 
nants or  agreements  in  any  indenture,  deed,  or  writing  certain, 
the  plaintiff  or  plaintiffs  may  assign  as  many  breaches  as  he  or 
they  shall  think  fit ;  and  the  jury  upon  trial  of  such  action  or 
actions,  shall  and  may  assess,  not  only  such  damages  and  costs 
of  suit  as  have  heretofore  been  usually  done  in  such  cases,  but 
also  damages  for  such  of  said  breaches  so  to  be  assigned  as  the 
plaintiff,  on  the  trial  of  the  same  shall  prove  to  have  been 
broken."  ^     The  language  here  is,  that  the  plaintiff  may  assign 

*  Rev.  Stat.  vol.  ii.  p.  353,  §§  26,  27.  conditioned  for  payment  of  money  by  instal- 

t  Wyllie  V.  Wilkes,  Doiij,^  519.  ments,  were  within  the  Act  of  4  Anne. 

X  Bonafous  v.  Rybot,  3  Burr.  1370,  1374.  ||  8  and  9  Will.  III.  eh.  11,  §  8. 
§  In  this  last  case  it  was  held  that  bonds 

1  Prior  to  this  act,  the  court  assessed  such  damages  only  as  had  accrued  at  the  date  of  the 
writ.     Under  it  and  similar  statutes  in  this  country,  it  has  been  held  that  the  jury  were  author- 


CH.    XVI.]  ASSIGNMENT    OF   BREACHES.  451 

breaches  ;  but  it  has  been  settled  that  the  statute  is  compul- 
sory,* and  that  a  judgment  obtained  under  the  former  practice 
of  the  common  law  is  bad  in  error.  In  the  case  last  cited,  Lord 
Kenjon  and  jNIr.  J.  Buller  said,  — 

"  It  is  apparent  to  us  that  the  law  was  made  in  favor  of  defendants,  and  is 
highly  remedial,  calculated  to  give  plaintiffs  relief  up  to  the  extent  of  the  dam- 
age su>itained,  and  to  protect  defendants  against  the  payment  of  further  sums  than 
what  is  in  conscience  due ;  and  also  to  take  away  the  necessity  of  proceedings  in 
equity  to  obtain  relief  against  an  unconscionable  demand  of  the  whole  penalty  in 
cases  wliere  small  damages  only  have  accrued." 

And  it  was  accordingly  held,  that  the  plaintiff  must  assign 
breaches,  and  that  the  jury  must  assess  the  damages. 

The  principles  of  this  act  have  been  engrafted  upon  the 
legislation  of  this  country.     In  New  York  it  is  provided  :  —  f 

"  When  an  action  shall  be  prosecuted  in  any  court  of  law,  upon  any  bond, 
for  the  breach  of  any  condition  other  than  for  the  payment  of  money,  or  shall 
be  prosecuted  for  any  penal  sura  for  the  non-performance  of  any  covenant  or 
written  agreement,  the  plaintiff  in  his  declaration  shall  assign  the  specific 
breaches  for  which  the  action  is  brought. 

"  Upon  the  trial  of  such  action  if  the  jury  find   that  any  assignment    fSOGI 
of  such  breaches  is  true,  and  that  the  plaintiff  should  recover  damages 
therefor,  they  shall  assess  such  damages,  and  shall  specify  the  amount  thereof  in 
their  verdict,  in  addition  to  their  finding  upon  any  other  question  of  fact  sub- 
mitted to  them. 

"  In  every  such  action,  if  the  plaintiff  recover,  the  verdict  of  the  jury  assess- 
ing the  plaintiff's  damages  shall  be  entered  on  the  record,  and  judgment  shall  be 
rendered  for  the  penalty  of  tlie  bond,  or  for  the  penal  sum  forfeited  as  in  other 
actions  of  debt,  together  with  costs  of  suit  ;  and  with  a  further  judgment  that 
the  plaintiff  have  execution  to  collect  the  amount  of  the  damages  so  assessed  by 
the  jury,  which  damages  shall  be  specified  in  such  judgment."  % 

*  Eoles  0.  Rosewcll,  5  T.  R.  538,  and  Har-  tained  in  the  same,  or  in  any  other  deed  or 

dy  V.  Bern,  Ibid.  636.  writing  ;  for  the  payment  of  uionev  by  instal- 

t  Revision  of  1813  (R.  Laws,  vol.  i.  p.  518),  ments  ;  for  the  payment  of  an   auniiitv  ;  or 

and  Revised  Statutes,  vol.  ii.  p.  300,  2d  ed. ;  for  the  payment  of  an  award  ;  to  bonds  jriven 

378,  1st  ed.  by  deputy  sherifts  for  the  faithful  performance 

X  This  act  has  been  applied  to  bonds  condi-  ot"  the  duties  of  their  office,  Barnard  v.  Dar- 

tioned  for  the  performance  of  covenants  con-  ling,   11   Wend.  28;  for  the   pertbrmance   of 

ized  to  assess  the  damages  to  the  time  of  tJw  trial.  Waldo  y.  Forbes,  1  Mass.  10;  Gardner  r. 
Niles,  16  Me.  279.  But  if  the  bond  is  not  one  for  the  performance  of  an  agreement  or  cove- 
nant, but  is  only  to  he  imd  on  the  conditions  therein  specified,  there  can  be  but  one  breach  of 
it,  and  therefore  but  one  suit  and  one  assessment  of  damages.  For  such  damages  judgment 
is  rendered  and  execution  issued  as  in  other  cases.  Unless  every  particular  in  the  condition 
is  performed  the  whole  condition  is  broken,  and  all  the  damages  are  in  contemplation  of  law 
sustained  at  that  time.  If  the  condition  is  a  continuing  one,  as  for  the  present  and  future 
support  of  the  obligee,  the  damages  must  be  not  only  to  the  time  of  the  trial  but  prospective 
beyond  that.  See  Philbrook  v.  Burgess,  52  Maine,  271,  where  the  principles  governing  the 
assessment  of  damages  on  bonds  are  reviewed. 


"452  dect  on  bond.  [ch.  xvi. 

The  Plaintiff's  Actual  Loss  only  recoverable  under  the 
Penalty.  —  These  two  statutes  have  together  produced  this 
reasonable  and  equifable  result,  that  in  the  case  of  an  agree- 
ment to  do  or  refrain  from  doing  any  particular  act  secured  by 
a  penalty,  the  amount  of  the  penalty  is  in  no  sense  the  measure 
of  compensation ;  ^  and  the  plaintiff  must  show  the  particular 
injury  of  which  he  complains,  and  have  his  damages  assessed  by 
the  jury.  It  may,  therefore,  be  laid  down  as  a  settled  rule  that 
no  other  sum  can  be  recovered  under  a  penalty,  than  that  which 
shall  compensate  the  plaintiff  for  his  actual  loss.^ 

In  the  action  of  debt  on  bond,  however,  judgment  still 
[397]  goes  for  the  penalty,  owing  to  the  technical  rule,  that  in 
this  action  the  entire  sum  is  demanded,  and  the  penalty 
is  the  debt,  according  to  the  express  terms  of  the  instrument ; 
this,  however,  is  corrected  by  the  practice  which  forbids  the 
execution  to  issue  for  more  than  the  sum  really  due.^ 

aiiy  other  specific  act,  not  being  the  payment  ion,   however,  "  that  the  conrt  below  would 

of  a  sum  of  money  in  gross.     It  has  also  been  allow  the  plaintiff  to  amend  his  declaration  on 

applied  to  replevin  bonds,  and  to  bail  bonds,  the  usual  terms." 

and  to  bonds  conditioned  to  restore  the  Again,  in  Livingston  v.  The  Superior  Court 
amount  recovered  in  the  event  of  a  reversal  on  of  the  City  of  New  York,  10  Wend.  545,  the 
certiorari.  Graham's  Practice,  2d  ed.  319  and  plaintiff,  in  a  suit  on  a  bond  given  to  prose- 
801.  cute  a  replevin  suit  in  New  Jersey,  omitted  to 
Previous  to  the  Revised  Statutes,  it  was  assign  breaches  in  his  declaration,  hnd  nomi- 
held,  in  New  York,  that  the  breaches  might  nal  damages  assessed,  and  entei-ed  judgment 
be  assigned  in  the  replication,  or  on  the  cir-  for  the  debt,  damages,  and  costs  :  the  defend- 
cuit  or  Nisi  Prius  roll ;  Imt  the  present  statute  ant  paid  the  nominal  damages  and  costs,  and 
is  more  special ;  and  in  Reed  v.  Drake,  7  applied  to  the  court  below,  the  Superior  Court 
Wend.  345,  it  was  held  that  the  breaches  of  the  City  of  New  York,  for  an  entry  of  sat- 
must  be  assigned  in  the  declaration ;  and  isfaction,  which  that  court  refused.  On  an 
where  the  plaintiff,  in  a  suit  on  an  arbitration  application  to  the  Supreme  Court  for  a  man- 
bond,  had  omitted  to  do  this,  but  had  assigned  damns.  Nelson,  J.,  said,  that  the  court  in- 
the  breaches  in  the  replication,  and  the  jury  dined  to  the  opinion  that  it  was  obligatory  on 
had  found  a  correct  verdict,  the  court  in  error  the  plaintiff  to  assign  breaches,  but  refused 
refused  permission  to  amend  the  declaration  the  motion,  and  left  the  parties  to  their  remedy 
by  inserting  an  assignment  of  breaches,  and  in  the  court  below, 
reversed  the  judgment,  expressing  their  opin- 


1  Like  other  contracts,  bonds  should  be  reasonably  construed  as  to  the  amount  of  damages 
in  case  of  an  alleged  breach.  And  -where  the  condition  of  a  bond  for  the  jjlaintiff 's  mainte- 
nance required  the  defendant  to  furnish  the  jilaintiff  "  with  money  necessary  to  spend  whenever 
he  thinks  proper  to  visit  his  friends,"  the  defendant  was  held  bound  to  furnish  a  sum  proper 
for  such  expenses  only  to  the  extent  of  reasonable  visits,  and  not  where  the  plaintiff  having 
recently  visited  the  friends,  there  was  really  no  occasion  for  further  visits.  Berry  v.  Harris,  44 
N.  H.  370. 

'^  Richardson  owing  $5,000  to  Rickctson,  conveyed  to  the  latter  by  a  deed  absolute  in  form 
executed  by  his  agent,  a  tract  of  land,  |)artly  with  the  purjjosc  of  paying  the  debt,  and  partly 
that  the  land  might  be  sold  in  the  Eastern  States.  The  agent  took  back  Ricketson's  bond  in 
the  penalty  of  $32,000,  payable  to  himself,  and  conditioned  to  pay  him  at  least  ^16,180  if  the 
land  Averc  sold,  and  half  the  profits,  and  if  it  were  not  sold,  to  reconvey  it  to  him  within  the 
year.  For  a  breach  of  the  agreement  to  reconvey,  Ricketson  was  held  liable  for  the  actual 
damages  only,  not  the  ?16,168  stipulated  in  the  condition.  Ricketson  v.  Richardson,  19  Cal. 
330. 

^  Where  a  judgment  was  recovered  in  one  State  for  the  amount  of  the  penalty  of  a  bond,  to 
stand  as  security  for  future  as  well  as  to  satisfv  past  breaches,  a  jilaintiff  suing  on  such  judg- 
ment in  another  State  can  recover  the  amount  of  damages  only  Ibr  ])ast  breaches  for  wliich 
execution  was  awarded  in  the  original  suit.     Nor  is  the  rule  afl'cctcd  by  the  lact  that  the  de- 


Cn.    XVI.]  DEBT    ON    BOND.  453 

Damages  are  given  in  the  action  of  debt  on  bond  for  the  de- 
tention of  the  debt;  but  such  damages  are  in  general  purely 
nominal;*  and  it  is  proper  to  notice  that  nominal  damages  may 
be  given  by  verdict,  but  not  on  defjiult.f  If,  however,  the  inter- 
est exceed  the  penalty,  it  will  no  doubt  be  necessary  to  have  tlie 
actual  damages  assessed  by  the  jury;  if  the  judgment  goes  by 
default,  the  taxing  offtcer  allows  the  excess  in  the  costs.  But 
the  damages  are  not  necessarily  nominal,  and  the  jurj^may  give 
substantial  damages  if  they  see  fit.$  ^ 

*  In  roniisylvaiiia  it  lias  been  licld  tliat,  in  Lord  Lonsdale  t\  CliuiTh,  2  T.  R.  388  ;  Wilde 

debt   for  a  penalty  by   the  party  aj^grieved,  v.  Clarkson,  6  T.  11.  303 ;  Smedes  v.  Hoogli- 

daniajics  may  be  j;iven  for  tlic  detention ;  but  talin;,'',   3    Caines,   48  ;    Cook   v.   Tousey ;   3 

not  in  the  case  of  a  conniion  informer.     Rit-  Wend.  444  ;  2  Saun.  107,  note  2. 
eliie  (.'.  Siiannon,  2Ra\\le,  1!»0;  Norris  f.  Til-         J  Henry   i'.  Earl,    8    M.    &  Wels.  233.     Li 

more,  1  Yeates,  408.     In  O'Neal  v.  O'Neal,  5  Belbin   v.   Bntt,   however,    2  Mees.  &   Wels. 

Watts  &  Scr<i.  130,  it  is  said  that  damages  in  422,  the  Eno:lisli   Conrt  of  Exeheqiier  refused 

debt  at  common  law  are  usually  nominal.  to  let  in  evidence  to  reduce  the  damages  in  an 

t  Peo])le  r.  Ilallctt,  4  Cowen,  67  ;  Lil.  Ent.  action  of  debt,  on  the  ground  that  there  was 

473,  483,  .'503  ;   Tidd's  Pr.  Forms,  169-70  ;  5  no  inquiry  in  that  action  as  to  damages.     But 

Wentw.   165-6,  414;  10  Ibid.  427-S,  453;  7  might  it  not  have  been  admissible,  if  oifered 

Ibid.  402  ;  Lil.  Ent.  257, 379  ;  Tidd,  Pr.  Forms,  directly  to  reduce  the  damages  for  the  deten- 

186,    187;  Clapp  y.  Reynolds,  2  J.  Cas.  409;  tion  ? 

fendant  has  removed  fi-om  the  jurisdiction  where  the  judgment  was  recovered.     Battey  v.  Hol- 
brook,  11  Gray,  212. 

1  In  suits  on  statutory  undertakings  and  bonds  given  to  secure  a  defendant  against  damages 
and  costs  resulting  from  an  attachment,  injunction,  or  other  provisional  remedy  wrongfully 
issued  or  supplied,  the  measure  of  damages  is  substantially  indicated  by  the  tenns  of  the  in- 
strument as  authorized  by  the  statute,  and  is  the  actual  expense  and  loss  occasioned  by  the 
writ  or  order.  Campbell  v.  Chamberlain,  10  Iowa,  337.  See  Bennet  v.  Brown,  31  Barb.  158, 
20  N.  Y.  99  ;  De  Mattos  v.  Gibson,  3  L.  T.  R.  (N.  S.)  121,  Pr.  V.  C.  W^ood.  The  expense 
recoverable  includes  the  costs  of  the  original  proceeding  (Dunning  v.  Humphrey,  24  Wend. 
31;  Schuyler  r.  Sylvester,  4  Dutch.  (N.  J.)  487;  Hayden  i-.  Sample,  10  Mo.  215),  and  usu- 
ally the  reasonable  counsel  fees  paid  for  setting  aside  the  injunction  or  attachment.  Corcoran 
V.  judson,  24  N.  Y.  106  ;  Littlejohn  v.  Wilcox,  2  La.  Ann.  620  ;  Fitzjiatrick  v.  Flagg,  12  Ab. 
Pr.  R.  (N.  Y.)  189;  Accessory  Transit  Co.  of  Nicaragua  w.  McCerren,  13  La.  Ann.  214; 
Moore  u.  Withenburg,  13  La.  Ann.  22;  Trapnall  y.  McAfee,  3  Mete.  (Ky.)  34;  Phelps  i>. 
Coggeshall,  13  La.  Ann.  440;  Seay  y.  Greenwood,  21  Ala.  _(N.  S.)  491  ;  Morris  t;.  Price,  2 
Blackf  (Ind.)  457.  Such  fees  cannot,  however,  be  recovered  in  an  action  of  trespass.  Wil- 
liams I'.  Scott,  30  Ala.  (N.  S.)  241.  Nor  can  counsel  fees  be  allowed  for  resisting  the  grant- 
ing of  an  injunction  which  is  granted  and  afterwards  vacated.  The  damages  caused  by  the 
injunction  cannot  precede  it.  Sturgis  v.  Knapp,  38  Vt.  486.  See  Police  Jury  of  W^est  Baton 
Rouge  f.  Bergeron,  11  La.  Ann.  390 ;  Corder  v.  Martin,  17  Mo.  41. 

In  South  Carolina  counsel  fees  have  been  held  not  recoverable.  Gadsen  v.  Bank  of  George- 
town, 5  Rich.  (S.  C.)  L.  336.  But  see  Simsw.  Goudelock,  7  Ibid.  23.  To  recover  such  tees  in 
California,  they  must  have  been  actually  paid.  Prader  v.  Grimm,  28  Cal.  11  ;  Willson  v.  Mc- 
Evoy,  25  Cal.  169.  And  in  an  early  case  in  California  they  were  not  allowed.  Heath?;. Lent, 
1  Cal.  410.  In  Kentucky,  it  is  sufficient  that  they  should  have  been  liquidated.  Schultz  v. 
Morrison,  3  Mete.  (Ky.)  98.  In  Alabama,  also,  counsel  fees  necessarily  incurred,  although 
not  paid,  may  be  recovered.  Garrett  y.  Logan,  19  Ala.  (N.  S.)  344;  Miller  i-.  Garrett,  35 
Ala.  (N.  S.)  96.  So  in  Louisiana.  McRca  i'.  Brown,  12  La.  Ann.  181.  In  New  Hamp- 
shire, where  reasonable  counsel  fees  are  allowed,  it  is  made  a  condition  of  their  recovery  that 
they  could  not  have  been  collected  from  the  parties  defending  the  suit  at  law  or  prosecuting 
the  bill  in  equity.  Derry  Bank  r.  Heath,  45  N.  H.  524.  Fees  of  counsel  employed  to  prose- 
cute the  claim  for  damages,  cannot  be  recovered.     Ofiut  v.  Edwards,  9  Rob.  (La.)  90. 

The  damages  recoverable  on  an  attachment  should  be  the  actual  loss  from  the  dejirivation  of 
the  use  of  the  ])roperty.  They  should  be  reasonably  certain,  and  a  natural  and  ]iroxiniate  con- 
sequence of  the  breach.  Neither  the  injury  to  a  merchant's  credit  from  the  attachment  of  his 
real  estate,  nor  the  depreciation  of  the  real  estate  pending  the  attachment,  are  sufficiently 
proximate  and  certain  to  be  allowed.  Heath  v.  Lent,  1  Cal.  410.  Nor  can  injuries  consequent 
on  loss  of  credit  occa^iioned  by  the  attajchment  be  compensated  for.  Pettit  v.  Mercer,  8  B. 
Monroe,  51.     But  if  the  wrongful  attachment  be  malicious,  in  Alabama,  such  damages  include 


454  DEBT    ON    BOND.  [CH.    XVI. 

Liquidated  Dajsiages.  —  We  now  approach  another  class  of 
cases,  where  the  parties  have  agreed  on  a  sum  certain  as  the 
measure  of  damages;  and  this  branch  of  our  subject  owing  to 

injuries  to  the  credit  aud  business,  and  exemplary  damages  may  be  recovered.  McCullough  v. 
W'alton,  11  Ala.  (N.  S.)  492 ;  Kirksc-y  v.  Jones,  7  Ala.  (N.  S.)  622  ;  Seay  v.  Greenwood,  21 
Ala.  493;  Spivey  ?i.  McGehee,  21  Ala.  417;  Forest  y.  Collier,  20  Ala.  175.  See,  also,  Of- 
i'uttv.  Edwards,!)  Rob.  (La.)  90;  State  v.  Thomas,  19  Mo.  613;  Moore  v.  Withenburg,  14 
La.  Ann.  22.  But,  for  reasons  elsewhere  more  fully  stated  (46.5,  note),  we  think  that  inju- 
ries to  credit  and  business  being  really  compensatory  in  their  nature  as  well  as  remote  aud 
speculative,  cannot  pro])crly  he  included  even  jn  exemplary  damages  in  these  actions.  See 
Campbell  v.  Chamberlain,  10  Iowa,  337.  If  considered  at  all,  it  should  be  so  far  only  as  they 
may  properly  go  to  show  the  extent  of  the  otfense  which  the  jury  is  authorized  to  punish. 

We  add,  in  further  illustration  of  the  genei-al  subject,  a  few  cases  to  show  the  extent  of  loss 
or  damage  for  which  compensation  is  to  be  had  in  these  actions.  Pending  a  preliminary  in- 
junction forbidding  the  defendants  in  a  suit  brought  under  the  New  York  Code  of  I'rocedure, 
from  interfering  with  some  logs  whieh  were  on  the  defendant's  land,  but  which  were  claimed 
by  the  plaintiffs,  who  brought  the  suit  to  establish  their  title  to  them,  the  plaintiffs  carried 
away  the  logs,  converted  them  into  lumber,  made  a  general  assignment  for  the  benefit  of  cred- 
itors, and  became  insolvent.  On  an  undertaking  of  a  surety  given  at  the  time  of  obtaining  the 
injunction,  to  the  effect  that  the  plaintiff  would  pay  all  damages,  not  exceeding  a  specified 
amount,  the  defendants  might  sustain  by  reason  of  the  injunction,  the  New  York  Court  of  Ap- 
peals held  that  the  measure  of  the  defendant's  damages  was  prima  facie  the  value  of  the  property. 
Barton  v.  Fisk,  30  N.  Y.  166.  And  where  an  injunction  restraining  a  party  from  taking  pos- 
session of  a  farm  was  issued  in  the  spring  and  dissolved  in  Septendjer  following,  the  court  in 
the  action  on  the  injunction  bond  held  that  the  measure  of  the  plaintiff's  damages  was  not 
merely  the  value  of  the  use  of  the  land  during  the  continuance  of  the  injunction,  but  the 
whole  damage  occasioned  by  his  being  kept  out  of  possession,  including  the  consequent  loss  of 
crops.  Edwards  v.  Edwards,  31  Bl.  474.  In  an  action  on  a  bond  given  on  obtaining  an  in- 
junction restraining  the  plaintiffs'  action  at  law  on  a  promissory  note,  interest  on  the  note  dui*- 
ing  the  pendency  of  the  injunction  was  held  recoverable  only  on  its  being  shown  that  the  mak- 
ers of  the  note  had  become  insolvent,  or  that  in  some  other  way,  without  fault  of  the  plaintiffs, 
they  had  suffered  damage  to  the  amount  of  the  interest.  Derry  Bank  v.  Heath,  45  N.  H.  524, 
supra.  In  debt  on  a  replevin  bond  conditioned  to  pay  all  such  damages  as  the  cTefendants  in  that 
action  should  recover,  the  measure  of  damages  is  the  judgment  in  the  replevin  suit.  Claggett 
V.  Elchards,  45  N.  H.  360. 

In  conformity  with  the  general  principle  of  indemnity,  the  rules  of  mitigation  applicable  to 
trover  and  other  classes  of  actions,  are  recognized  here.  Thus  where  a  plaintiff  had  been  non- 
suited in  the  original  action  in  which  he  had  olitained  an  attachment,  it  was  permitted  to  be 
shown  in  mitigation  of  damages  in  the  action  on  the  attachment  bond,  tliat  the  property  thus 
attached  had  been  reattached  in  a  subsequent  action  by  him  which  had  been  prosecuted  to  a 
judgment  under  which  the  proi^erty  was  sold.  Earl  v.  Spooner,  3  Denio,  246.  Had  the  orig- 
inal taking  been  an  absolute  trespass,  however,  without  color  of  legal  right,  it  is  presumed  that 
the  mitigation  would  not  have  been  allowed,  on  the  principle  that  a  wrong-doer  cannot 
qualify  or  apportion  his  wrong.  So,  again,  where  the  statute  provided  that  in  actions  to  deter- 
mine claims  to  real  property,  the  plaintiff  must  recover  on  the  strength  of  his  own  title,  it 
was  held  in  an  action  on  a  bond  given  upon  the  granting  of  an  injunction  to  restrain  a  plain- 
tiff fi'om  cutting  timber  on  a  tract  of  land,  that  the  defendant  might  show  in  mitigation  that 
the  plaintiff  had  no  title  to  the  land  and  no  right  to  cut  timber  on  it.  Jenkins  v.  Farkhill,  25 
Ind.  473.  See  post,  550,  note.  The  probability  and  justice  of  the  claim,  on  the  other  hand, 
it  is  said  in  Louisiana,  will  go  in  mitigation  of  the  damages.  Cox  v.  Robinson,  2  Rob.  (La.) 
313.     But  this  must  be  taken  with  reference  to  the  question  of  exemplary  damages  only. 

A  question  has  recently  been  decided  by  the  Supreme  Court  of  the  United  States,  concerning 
the  measure  of  damages  in  actions  brought  by  one  public  officer  to  recover  for  ouster  by 
another.  A,  being  duly  elected  mayor  of  Georgetown,  B  was  nevertheless  sworn  into  office, 
and  entered  upon  the  duties.  A,  proceeding  bj^  quo  warranto  recovered  judgment  of  ouster. 
B  took  a  writ  of  error  to  review  this  judgment,  and  gave  a  bond  to  answer  all  damages  and 
costs,  etc.  The  writ  of  error  was  subsequently  dismissed,  and  A  brought  suit  on  the  bond,  to 
recover  the  amount  received  by  B  as  salary  from  the  date  of  the  Ttond  to  the  time  when  A  got 
the  benefit  of  the  judgment  of  ouster.  Held,  that  the  plaintiff  was  entitled  to  recover  the 
amount  so  received.  United  States  v.  Addison,  6  Wallace,  291.  A  bond  was  given  to  an 
officer  conditioned  to  indemnify  him  from  all  suits,  damages,  and  costs  whereto  he  might  be 
liable  or  obliged  by  law  to  pay  by  reason  of  an  attachment.  The  owner  of  the  property  at- 
tached recovered  judgment  against  the  officer  for  more  than  the  amount  of  the  penalty  of  the 
bond,  and  the  execution  was  satisfied  by  the  assignment  of  the  bond  to  the  owner  of  the  prop- 
erty. In  a  suit  on  the  bond  it  was  held  that  the  obligor  was  liable  for  the  full  amount  of  the 
penalty,  with  interest.     W^hite  v.  French,  15  Gray,  339. 


CH.  xvl]  liquidated  damages.  455 

the  existence  of  the  technical  penalty,  will  be  found  environed 
by  niiicli  doubt  and  contradiction. 

AVlien  speaking  of  the  subject  of  damages  with  regard  to  the 
action  of  debt  on'bond  *  we  have  stated  the  rule,  resulting  from 
the  peculiar  form  of  that  instrument,  which  fixes  a  penalty  sub- 
ject to  a  certain  condition.  We  have  now  to  consider  the  same 
matter  in  another  sense. 

It  is  competent  for  parties  entering  upon  an  agreement  to 
avoid  all  future  questions  as  to  the  amount  of  damages  which 
may  result  from  the  violation  of  the  contract,  and  to 
agree  upon  a  definite  sum,  as  that  which  shall  be  paid  to  [398] 
the  party  who  alleges  and  establishes  the  violation  of  the 
agreement.!  ^  In  this  case  the  damages  so  fixed,  are  termed 
liquidated,  stipidated,  or  stated  damages.  But  even  where  this 
course  has  been  adopted,  and  a  sum  certain  named  in  the  con- 
tract, difficulty  has  arisen  as  to  whether  it  should  be  considered 
as  such  liquidated  damages,  or  only  as  a  penalty.  J  It  being 
settled  by  the  courts,  both  of  equity  and  law,  that  a  penalty 
was  only  intended  as  a  security  for  the  principal  sum  due,  or  the . 
actual  damages  sustained,  it  became  doubtful  even  when  a  defi- 
nite sum  was  named,  whether  the  parties  intended  it  for  that 
purpose,  or  whether  it  was  meant  as  liquidated  damages,  behind 
which  the  courts  could  not  go  ;  and  on  this  subject  various  cases 
have  been  decided.^ 

Classification  of  the  Subject.  —  It  is  proper,  however,  before 

we  examine  these  cases,  to  notice  a  distinction  as  to  the  way  in 

which  the  question  presents  itself,  growing  out  of  the  form  of 

the  contract,  from  want  of  a  constant  attention  to  which  part 

■  of  the  confusion  has  arisen. 

Fit'st  The  agreement  may,  in  the  first  place,  be  to  do  or 

i   *  Ante,  392,  et  seq.  designates  a  sum  absolutely  due  in  case  of  the 

t  A  provision  of  this  nature  has  been  en-  non-pcrfonnauce   of  an   agreement,   quite   as 

grafted   on   charter-parties,  and   is   familiarly  clearly  as  the  phrase  liquidated  dayncycs.     But 

known  as  Deanurrage.  the  term  has  now  acquired  a  fixed  and  well- 

}  The  word  penalty  is  in  this  contradistinc-  settled  technical  meaning. 

tion  not  very  correct  or  significant ;  the  word 

1  Smith  V.  Whitaker,  23  HI.  367  ;  Bingham  v.  Richardson,  Winston's  Law  R.  (N.  C.)  217. 

'^  Fraud,  which  vitiates  all  contracts,  cannot  be  sheltered  under  a  stipulation  for  damages. 
So,  where  in  a  contract  for  tlie  sale  of  land,  the  damages  were  liquidated  at  what  was  said  by 
the  vendor  to  be  their  cost,  but  was  in  tact  ten  times  as  much,  the  rule  fixing  the  damages  ac- 
cording to  the  agreement  of  the  parties  was  not  allowed  to  prevail.  W^aml:)augh  v.  Bimer,  25 
Ind.  368. 

Although  the  parties  have  agreed  upon  a  sum  as  liquidated  damages,  yet  if  it  appears  that 
the  agreement  contemplated  only  a  total  feilure  to  ]ierf()rm,  and  there  has  been  a  partial ^  jjer- 
formance  by  defendant,  he  is  li"al)le  only  for  the  damages  resulting  from  the  partial  failure. 
Lampman  v.  Cochran,  16  N.  Y.  275  ;  aliirming  19  Barb.  (N.  Y.)  388. 

By  extending  the  time  of  performance,  neitlier  party  loses  the  right  to  insist  on  the  recovery 
of  liquidated  damages.    Esmond  v.  Van  Benschoten,  12  Barb.  (N.  Y.)  366. 


456  LIQUIDATED    DAMAGES.  [CH.    XVI. 

refrain  from  doing  some  particular  act ;  or,  in  default  thereof, 
to  pay  a  given  sum  of  money  ;  and  this  was  well  known  to  the 
Roman  law.  So  the  imperial  legislator  advises  his  subjects,  in 
making  contracts  for  the  doing  of  anything,  to  fix  the  amount 
of  damages  by  inserting  a  j)recise  stipulation  to  that  effect :  Non 
solum  res  in  stipulationem  deduci  possunt,  sed  etiam  facta  :  ut  si 
stipulemur  aliquid  fieri  vel  non  fieri.  Et  in  hujusmodi  stipula- 
tionibus  optimum  erit  poenam  subjicere,  ne  quantitas  stipula- 
tionis  in  incerto  sit,  ac  necesse  sit  actori  probare  quid  ejus 
intersit.  Itaque  si  quis,  ut  fiat  aliquid,  stipuletur  ita  adjici  pa)na 
debet :  si  ita  factum  non  erit,  tunc  poence  nomine  decem  aureos 
dare  spondes.*  This  as  Lord  Kaims  clearly  points  out,t  is  prop- 
erly an  alternative  obligation,  and  the  sum  stated  cannot  be 
correctly  termed  a  penalty. 

Secondlf/,  the  agreement  may  assume  the  technical  form  of 
the  bond,  containing  a  declaration  of  an  absolute  indebtedness 
in  a  given  sum,  conditioned  to  become  void  on  the  pay- 
[399]  ment  of  a  less  sum,  or  the  performance  of  some  particular 
act.  Here  there  is  no  express  promise  or  undertaking  to 
do  anything.  The  indebtedness  declared  in  the  prior  part  of 
the  instrument  is  not  intended  to  be  binding.  The  promise 
relied  on  is  contained  in  or  implied  from  the  condition,  and  that 
is  sanctioned  by  the  penalty. 

Thirdly,  the  agreement  may  bind  the  party  absolutely  to  do, 
or  refrain  from  doing,  the  particular  act,  and  then  proceed  to 
declare  that  if  the  promise  is  not  performed,  the  party  stipulat- 
ing shall  pay  a  given  sum  of  money  as  a  iienaMy. 

And  laBtly^  the  agreement  may  in  all  respects  resemble  the 
last,  except  that  the  fixed  sum  may  be  declared  payable  as  liqui- 
dated or  stated  damages,  or  as  ix,  forfeiture} 

Before  proceeding  to  examine  the  cases,  some  few  general 
observations  may  be  of  use  to  serve  by  way  of  introduction  and 
illustration.  Whenever  questions  of  the  nature  we  are  now 
considering  present  themselves,  the  attention  of  the  courts  is 
mainly  fixed  on  three  different  points :  First,  the  language  em- 
ployed;  Second,  the  subject-matter  of  the  contract';  and  Third, 
the  intention  of  the  parties.  These  are,  indeed,  the  great  ele- 
ments of  interpretation  of  all  contracts.     But  in  the  case  we  are 

*  Inst.    lib.    iii.    tit.     xlv.    de   Verb.    Ob-  tainty  in  many  cases  :  Est  vero  id  quod  inter- 

lig.   section  7.     Vinnius,  in  his  commentary  est  inccrtum  duplici  ratione,  ab  evcntu,  ipsius 

on   tliis   section,  discusses   the   subject  of  the  Rei,  et  a  probatione.     Vinn.  Comm.  p.  606. 

measure  of  damages  and  its  necessary  uncer-  t  Kaim's  Equity,  book  iii.  ch.  ii.  p.  277. 

^  The  fourfold  classification  of  the  text  was  approved  and  followed  in  Esmond  v.  Yaw  Ben- 
schoten,  12  Barb.  (N.  Y.)  365. 


CH.    XVI.]  GENERAL   RULES.  457 

now  examining,  the  courts,  especially  in  this  country,  have  gen- 
erall}^  shown  a  marked  desire  to  lean  towards  that  construction 
which  excludes  the  idea  of  liquidated  damages,  and  permits  the 
party  to  recover  only  the  damage  which  he  has  actually  sus- 
tained. The  language  of  the  contract  is  not  controlling.  If, 
indeed,  the  word  "/>(?;<«%"  is  used,  as  we  shall  see  hereafter,  it 
will  never  be  construed  as  a  sum  absolutely  fixed.  But  the  re- 
verse is  by  no  means  the  case;  and  the  ^hv^^Q  ^^ liquidated  dam- 
ages" has  often  been  made  to  read  '■'■ 'penaUyT'^ 

And  such,  it  seems,  was  the  disposition  of  the  civil  law  in  the 
somewhat  analogous  case  of  the  siipuldtio  duplex  :  Qua3  scru- 
pulositates  et  difierentiix^  procedunt  propter  odiositatem  strictam- 
que  naturam  stipulationis  duplas,  quae  stricti  juris  est,  contra 
quam  etiam  in  dubio  fit  interpretatio.  Contra,  vero,  actio  ex 
empto  bona3  fidei  est,  et  etiam  favorabilis,  cum  non  competat  ad 
veram  pcenam,  sed  subsistere  et  probari  opertet,  verum  et  jus- 
tum  interesse,  merito  in  eS,  plenior  fit  interpretatio.* 

The  Subject-matter  and  Intent  of  Parties  the  Main  Guides.  — 
The  subject-matter  of  the  contract  and  the  intention  of  the 
parties,  are  the  controlling  guides.^  If  from  the  nature 
of  the  agreement  it  is  clear  that  any  attempt  to  get  at  [400] 
the  actual  damage  would  be  difficult,  if  not  vain,  then  the 
courts  will  incline  to  give  the  relief  which  the  parties  have 
agreed  on.  But  if,  on  the  other  hand,  the  contract  is  such  that 
the  strict  construction  of  the  phraseology  would  work  absurdity 
or  oppression,  the  use  of  the  term  liquidated  damages  will  not 
prevent  the  courts  from  inquiring  into  the  actual  injury  sus- 
tained, and  doing  justice  between  the  parties. 

Usury.  —  We  may  remark,  in  the  first  place,  that  it  is  well 
settled  that  no  damages  for  the  mere  non-payment  of  money 
can  ever  be  so  liquidated  between  the  parties  as  to  evade  the 
provisions  of  law  which  fix  the  rate  of  interest.^     So,  in  a  case,t 

*  Dumoulin,  de  Eo  quod  Int.  §  123.  t  Orr  v.  Churchill,  1  H.  Black.  232. 

1  Thorotighgood  v.  Walker,  2  Jones  (N.  C.)  L.  15  ;  Biirrage  v.  Crump,  3  Ibid.  330. 

-  See  Chascu.  Allen,  13  Gray,  42. 

3  See  Clark  v.  Kay,  26  Geo.  403  ;  Brown  v.  Maulsby,  17  Ind.  10.  This  principle  has  been 
adhered  to  in  Minnesota,  notwithstanding-  the  laws  of  that  State  permit  the  parties  to  agree 
in  writing  on  any  rate  of  interest,  establishing,  however,  where  no  rate  is  thus  agreed  on,  the 
legal  rate  at  seven  per  cent.,  which  is  accordingly  held  to  be  the  measure  of  the  damages  for 
the  breach  of  a  contract  to  pay  money.  So  in  the  case  of  a  promissory  note  bearing  one 
agreed  rate  of  interest  up  to  maturity  and  another  higher  rate  after  maturity,  the  higher  rate 
is  considered  to  be  in  the  nature  of  a  penalty  only.  And  in  an  early  case  it  was  held  that 
on  default  in  the  payment  of  such  a  note  at  maturity,  the  rate  to  be  paid  after  default 
was  that  which. the  note  bore  up  to  maturity,  which  was  three. per  cent,  a  month,  instead 
of  that  exjjressed  to  be  paid  after  defiiidt,  which  was  five  per  cent,  a  month.     Mason  v.  Cal- 


458  LIQUIDATED    DAMAGES.  [CH.    XVI. 

where  a  bond  was  given  that  if  certain  bills  were  not  accepted, 
the  ol)ligors  wonld  pay  tlie  amount  of  them,  with  interest  at  10 
per  cent,  by  way  of  penalty,  it  was  insisted  that  the  damages 
were  liquidated.  But  Lord  Loughborough  said,  "There  can 
only  l)e  an  agreement  for  liquidated  damages  where  there  is  an 
agreement  —  for  the  performance  of  certain  ads  the  not  doing  of 
which  would  be  injurious  to  one  of  the  parties,  or  to  guard 
against  the  performance  of  acts  which  if  done  would  also  be  inju- 
rious. But  in  cases  like  the  present  the  law,  having  by  positive 
rules  fixed  the  rate  of  interest,  has  bounded  the  measure  of 
damages."  And  it  was  held  that  the  amount  of  the  bills,  with 
legal  interest  only,  could  be  recovered.  And  in  a  similar  case, 
this  language  was  held  by  the  Supreme  Court  of  New  York : 
"  Such  facts  constitute  no  right  to  recover  beyond  the  money 
actually  due.  Liquidated  damages  are  not  applicable  to  such  a 
case.  If  they  were,  they  might  afford  a  sure  protection  for 
usury,  and  countenance  oppression  under  the  form  of  law."  *  ^ 

English  Cases. — The  earliest  notice  of  the  general  subject 

*  Gray   v.  Crosby,  18  J.  R.  219  and  226.  tain  sum  on  the  non-performance  of  a  covenant 

In    Galsworthy  v.  Strutt,  1  Exch.  Eej).   659,  to  pay  a  smaller  sum  ;  but  they  must  do  so  in 

Parke,  B.,  is  reported  to  have  said,  with,  per-  express  terms  ;  and  if  that  be  done,  I  do  not 

haps,  less  tlian  his  usual  care  and  discrimina-  see  how  the  court  can  avoid  giving  effect  to 

tion,  "  I  take  it  that  it  would  be  competent  for  such  a  contract." 
the  parties  to  make  a  stipulation  to  pay  a  cer- 

lender,  2  Minn.  350.  In  the  later  cases  of  Talcott  v.  Marston,  3  Minn.  339,  and  Daniels  v. 
Ward,  4  Minn.  168,  the  court  went  still  fixrther  and  declared  the  I'ule  to  be  seven  per  cent,  only 
after  the  default  to  that  extent  overruling  the  prior  decisions.  In  the  State  of  Kansas,  also, 
under  a  similar  provision  of  law,  a  note  bearing  live  per  cent,  interest  a  month  up  to  maturity, 
was  held  to  bear  after  maturity  only  the  rate  fixed  by  statute,  where  none  was  agreed  on  by 
the  parties.  Robinson  v.  Kinney,  2  Kansas,  184.  So  in  Illinois,  where  the  legal  interest,  in 
the  absence  of  a  stipulation,  is  six  per  cent.,  but  any  rate  up  to  ten  per  cent,  may  be  agreed  on, 
when  a  debt  bearing  the  higher  rate  becomes  merged  in  a  judgment  or  decree,  the  interest  is 
held  to  be  thenceforward  limited  to  six  per  cent.  Wayman  v.  Cochrane,  35  111.  152  ;  Way- 
man  V.  Crozier,  35  111.  156.  But  these  rulings  seem  practically  to  conflict  with  the  enlarged 
policy  of  the  statute,  and  perhaps  also  tend  to  discourage  that  good  faith  in  dealing,  which  it 
should  be  the  sedulous  endeavor  of  jurisprudence  to  promote.  They  allow  the  debtor,  by  a 
breach  of  his  contract,  to  obtain  for  a  time  the  use  of  his  creditor's  money  at  a  rate  less  than 
he  agreed  to  pay,  and  one  which  may  be  far  less  than  it  could  be  had  for  in  the  mai'ket,  and 
which  no  degree  of  good  fliith  would  have  enabled  him  to  obtain. 

And  in  Connecticut  a  different  rule  has  been  adopted.  Where  a  railroad  company,  by  spe- 
cial act  of  the  legislature  of  that  State,  was  aixthorized  to  issue  bonds  at  seven  per  cent,  when 
the  legal  rate  was  but  six,  and  the  bonds  wete  not  paid  at  maturity,  the  holders  were  adjudged 
to  be  entitled  to  interest  as  damages  estimated  by  the  contract,  and  not  merely  the  legal  rate. 
The  court  said  that  there  was  no  equity  in  favor  of  one  rate  of  interest  rather  than  another 
w^here  both  were  legal,  and  that  the  defendants  ought  not  to  complain,  as  long  as  it  was  in  their 
power,  by  paying  the  principal,  to  protect  themselves  from  paying  what  they  thought  a  reason- 
able rate  when  they  borrowed  the  money.  Beckwith  v.  The  Trustees  of  the  Hartford,  Provi- 
dence, and  Fishkill  R.  R.  29  Conn.  268.  And  in  Kansas,  where,  by  the  terms  of  a  note  matur- 
ing at  a  specified  time,  it  bears  the  higher  rate  of  interest  until  paid,  it  continues  at  stich  rate 
after  maturity.  Dudley  v.  Reynolds,  i  Kansas,  285  ;  Small  v.  Douthitt,  1  Kansas,  335 ;  Young 
V.  Thompson,  2  Kansas,  83. 

1  But  m  Illinois,  an  agreement  in  a  promissory  note  made  in  good  faith,  without  design  to 
evade  the  usury  laws,  in  case  the  note  is  not  paid  at  maturity,  to  paj'  thereafter  a  rate  exceed- 
ing the  legal  rate  until  paid,  is  not  usurious.  Gould  v.  The'  Bishop  Hill  Colony,  35  HI.  324  ; 
Lawrence  v.  Cowles,  13  111.  577. 


CII.    XVI.]  ENGLISH    CASES.  459 

appears  to  be  in  Sir  Baptiste  Hixts'  case,*  which  is  as  follows : 
In  an  action-of  covenant,  if  the  plaintiff  counts  that  in 
an  agi'eement  for  certain  lands  between  plaintiff  and  de-  [401] 
fendant,  the  defendant  covenanted  that  if  on  measure- 
ment there  were  not  foimd  as  many  acres  as  the  defendant  had 
stated  to  the  plaintiff  at  the  time  of  sale,  he  would  repay  for 
each  acre  wanting  £11  per  acre,  and  avers  that  on  measure- 
ment, so  many  acres  were  wanting  as  would  at  £11  per  acre 
amount  to  £700  ;  and  issue  being  joined  whether  they  were 
wanting,  and  the  jury  find  for  the  plaintiff,  and  give  £400  dam- 
ages, this  issue  is  well  found  for  the  plaintiff;  for  although  it 
were  found  that  all  the  acres  w^ere  wanting,  still  ihey  are  chan- 
cellors, and  may  give  such  damages  as  the  case  requires  in 
equity,  inasmuch  as  the  whole  consists  in  giving  damages.!  To 
this  decision  I  have  already  referred,  as  being  strikingly  illustra- 
trative  of  the  laxity  of  all  the  early  cases  on  the  subject  of  com- 

pensation.t 

In  the  next  case  in  which  the  subject  was  discussed,^  the 
plaintiff  had  executed  a  bond  in  £100  penalty  to  the  Duke  of 
Beaufort,  that  his  son  should  not  poach  on  the  duke's  grounds 
without  leave  from  the  game-keeper,  or  unless  in  company  with 
a  qualified  person.  The  son  afterwards  fished  ;  the  bond  was 
put  in  suit,  the  penalty  of  £100  recovered,  and  paid  by  the 
plaintiff,  with  ^^40  costs  of  suit.  This  bill  was  filed  for  relief 
It  was  insisted  that  the  bond  was  only  given  as  a  security  that 
the  son  should  not  poach ;  but  Lord  Chancellor  Hardwicke  said, 
"  It  is  most  absurd  to  think  that  bonds  of  this  kind  were  in- 
tended merely  as  a  security,"  and  asked,  "In  what  re- 
spect is  the  gentleman  who  has  such  a  bond  in  a  better  [402] 
condition  than  he  was  before,  if  after  obtaining  judgment 

*  2  Rollcs  Abr.  703,  tit.  Trial.  J  In  a  subsequent  case,  Lowe  v.  'Peers,  4 
t  The  original  is  as  follows  :  En  un  action  Burr.  2225  and  2229,  Lord  Mansfield  said, 
de  covenant,  si  le  plaintife  count  que  sur  un  "  As  to  the  case  mentioned  bj-  Mr.  Mansfield, 
bargain  pur  certein  terres  enter  le  plaintife  ct  from  Eolles  xibr.,  it  is  impossible  to  su])port 
defendant,  le  defendant  covenant  que  si  nc  it;  for  it  cannot  be  that  a  man  should  be 
fucront  tant  acres  sur  le  measure  come  le  de-  obliged  to  take  less  than  the  liquidateil  sum. 
fendant  ad  dit  al  plaintife  sur  le  vendition  que  And  the  writ  of  error  in  that  case  was  ]ihiinly 
le  terre  vend  fuit,  que  il  repareroit  pur  chescun  brought  bj-  the  defendant.  Besides,  the  dam- 
acre  que  deessct  del  number  £11,  et  allege  que  ages  could  never  be  taken  advantage  of  upon 
sur  lo  measure  tant  acres  en  certain  defiieront  a  writ  of  error.  How  could  the  qwintum  of 
que  amount,  solonque  £11  I'acrc,  al  £700  ;  et  damages  found  by  the  jury  be  the  subject  of  a 
Tissue  est  an  defueront,  &c.     Et  le  jurie  trove  wrli  of  error  ?  " 

pur  plaintife,    et  done  £400    damages.     Cest  §  Roy  i'.  The  Duke  of  Beaufort,  2  Atk.  190, 

issue  est  bieu  trove  pur  le  plaintife;  car  coment  decided  in  1741.     But  on  the  ground  that  an 

que  .soit  trove  per  ceo  que  touts  les  acres  de-  ill  use  had  been  made  of  the  bond,  the  chan- 

fueront,  uncoi-e  ils  sont  chancellors,  et  poient  cellor  relieved  the  plaintiff  against  the  verdict, 

doner  tant  dammages  come  le  case  require  en  and  decreed  the  duke  to  refund  the  £100  and 

equitie,  eu  taut  que  tout  est  d'estre  done  cu  .£40  damages, 
dammages. 


460  LIQUIDATED    DAMAGES.  [CH.    XVI. 

at  law.  a  court  of  equity  will  give  him  no  other  satisfaction  than 
the  hare  value  of  the  price  of  the  game  that  is  killed." 

In  a  case  before  the  same  great  judge,*  Aylet  had  charged 
certain  lands  by  his  will  with  an  amount  of  ten  pounds  for  the 
maintenance  of  a  school-master,  to  be  paid  half-yearly  ;  and  if 
in  arrear  forty-two  days  after  due,  6s.  per  week  were  allotted, 
by  way  of  nomine  poence.  A  commission  of  charitable  uses  issued 
from  chancery,  summoned  the  owner  of  the  land,  who  was  in 
defiiult,  and  awarded  the  arrears  and  the  nomine  poence.  Excep* 
tion  was  taken  that  in  a  court  of  equity,  the  nomine  poence  would 
be  relieved  against  on  payment  of  the  actual  arrears.  Lord 
Chancellor  Hardwicke  said  that  the  nomine  pcence  should  stand, 
according  to  the  intention  of  the  parties,  as  a  security  for  the  legal 
interest.  But  he  went  on  to  say,  that  where  there  is  a  nomine 
pcEnce  in  a  lease  to  prevent  the  tenant  from  breaking  up  pas- 
ture ground,  it  is  otherwise ;  for  the  intention  there  is,  to  give 
the  landlord  compensation  for  the  damage  sustained,  and  in  such 
case  the  whole  nomine  poence  shall  be  paid. 

And  so  in  a  subsequent  case  f  where  an  increased  rent  was 
declared  payable,  provided  land  should  be  plowed  up,  the  agree- 
ment was  held  conclusive  on  the  quantum  of  damages.^ 

Again,§  where  a  bond  had  been  given  by  the  plaintiff  Benson, 
to  the  defendant,  a  hair  merchant,  as  a  security  for  his  services 
in  Flanders  as  an  agent  to  buy  hair,  the  plaintiff  was  to  stay 
abroad  a  certain  time  ;  and  as  security  for  his  performance  he 
deposited  ,£100  with  the  defendant.  The  plaintiff  bought  but 
five  pounds'  worth  of  hair,  and  returned  to  England  before  the 
time  agreed  on.  The  bill  was  filed  for  <£50  per  annum  agreed 
to  be  paid  by  the  defendant  to  the  plaintiff,  and  also  to  recover 
back  the  deposit.  It  was  insisted  that  the  plaintiff  had 
[403]  committed  a  breach,  that  the  <£100  was  stated  damages; 
and  the  previous  cases,  of  the  nomine  poence  in  leases  and 
the  poaching  bond,  were  cited ;  but  Lord  Hardwicke  said  that 
this  was  a  bond  for  services  only,  and  refused  to  decree  the 
penalty,  but  directed  an  issue  of  cjuantwn  dammficatus. 

In  a  subsequent  case,ll  the  plaintiff  demised  certain  lands  in 
Ireland,  for  three  lives,  at  the  yearly  rent  of  £125,  with  a  con- 
dition, that  if  the  tenant  should  not  live  on  the  premises,  the 

*  Aylet  V.  Dodd,  2  Atk.  238,  decided  in  the  such  an  agreement  is  this  :  beyond  the  penalty 

same  year.  you  shall  not  go  ;  within  it,  you  are  to  give  the 

t  Earrant  v.  Olmius,  3  B.  &  Aid.  692.  party  any  compensation  which  he  can  prove 

X  But  in  Wilbeam  v.  Ashton,  1   Camp.  78,  lumsclf  entitled  to." 
where   assumpsit  was  brought   on   an   agree-         §  Benson  v.  Gibson,  3  Atk.  395  (1746). 
ment  to  serve  the  plaintiff  as  a  leather-dresser,         ||  Ponsouby  v.  Adams,  2  Bro.  P.   C.  431, 

under  a  penalty  of  £50,  Lord  EUenborough,  case  35  (anno  1770). 
at  Nisi  Prius,  said,  "  The  legal  construction  of 


CII.    XVI.]  COVENANTS    F.Y    TENANTS.  4G1 

rent  should  be  raised  to  .£150.  The  tenant  violated  the  condi- 
tion by  non-residence.  The  landlord  distrained  ;  the  tenant  re- 
plevied ;  the  landlord  avowed ;  and  while  the  proceedings  at  law 
were  going  on,  the  tenant  fded  his  bill  for  a  perpetual  injunction. 
The  Irish  court  granted  an  injunction.  An  appeal  was  taken  to 
the  House  of  Lords,  where  it  was  insisted  that  the  covenant  was 
only  inserted  for  the  sake  of  improvement,  and  that  it  was 
admitted  b}''  the  pleadings  that  the  lands  had  been  kept  well 
stocked,  and  that  the  agreement  had  been  substantial!}^  per- 
formed. But  the  bill  was  dismissed.  No  reason  beino-  assio;ned, 
the  case  is  altogether  unsatisfactory;  and  if  it  was  intended  to 
decide  that  the  covenant  should  be  considered  as  one  for  stipu- 
lated damages,  it  would  seem  incorrect. 

Again,*  where  the  appellant  Rolfe  demised  certain  lands,  with 
a  covenant  on  the  part  of  the  lessee,  that  if  he,  during  the  term, 
should  convert  into  tillage  any  part  of  the  ancient  meadow 
ground  that  had  not  been  in  tillage  within  twenty  years,  or  if 
he  should  plow  or  sow  out  of  course  any  of  the  arable  lands, 
then  for  such  lands  converted  or  sown  out  of  course  a  further 
rent  of  £5  should  be  paid.  There  were  other  covenants  against 
cutting  trees,  etc.  The  tenant  converted  certain  furze  land, 
which  had  not  been  tilled  within  twenty  years,  into  tillage,  and 
committed  breaches  of  the  other  covenants  ;  upon  which  the 
landlord  brought  an  action  of  covenant,  and,  default  being 
made,  on  a  writ  of  inquiry  recovered  £300.  The  respondent 
(the  tenant)  filed  a  bill  for  relief  against  the  judgment ;  and 
Lord  Chancellor  Camden  directed  an  issue  of  qiiantimi 
damnificahis,  holding  that  the  plaintiff  was  entitled  to  [404] 
relief  against  the  judgment,  on  making  a  just  and  ade- 
quate satisfaction  for  the  damages  sustained  by  breach  of  the 
covenant.  On  appeal  to  the  House  of  Lords,  the  main  question 
was  whether,  on  an  action  of  covenant  by  landlord  against 
lessee,  and  damages  assessed  by  a  jury,  a  court  of  equity  has 
jurisdiction  to  direct  an  issue  for  reassessing  those  damages. 
It  was  insisted  that  the  estate  had  been  really  benefited  by  the 
conversion  of  the  furze  land  into  tillage,  and  that  the  £300  ver- 
dict was  outrageous ;  but  the  Lords  reversed  the  decree,  and 
dismissed  the  bill,  no  reason,  however,  being  assigned.  The 
decision  plainly  turned  on  the  jurisdiction  of  Chancery,  and  so 
far  seems  evidently  right.  The  true  construction  of  the  con- 
tract, whether  to  be  regarded  as  a  penalty  or  liquidated  dam- 
ages, was  not  passed  upon. 

*  Rolfe  V.  Peterson,  2  Bro.  C.  P.  436,  case  42  (anno  1772). 


462  LIQUIDATED    DAMAGES.  [CIT.    XVL. 

Again  *  where  the  phiintifF  and  defendant  were  partners,  and 
the  plaintiff  had  given  the  defendant  a  bond  in  a  penalty  of 
£500  that  he,  the  defendant,  should  have  the  use  of  a  particular 
room,  the  use  of  it  being  refused,  the  defendant  brought  suit  on 
the  bond.  This  bill  was  thereupon  filed,  praying  an  injunction, 
and  an  issue  of  quanhmi  damnificalus ;  and  the  only  question,  on  a 
motion  to  dissolve  the  injunction  before  hearing,  was  whether 
the  penalty  was  merely  intended  as  a  security  for  the  use  of  the 
room,  or  in  the  nature  of  assessed  damages.  Lord  Chancellor 
Thurlow  held  that  it  belonged  to  the  former  class,  and  the  in- 
junction was  retained.! 

In  a  case  already  referred  to,t  the  defendant  had  made  a  con- 
tract, under  seal,  not  to  marry  any  person  besides  the  plaintiff; 
and  if  he  did,  to  pay  her  £1,000  within  three  months  thereafter. 
The  defendant  married  another  woman,  and  this  suit  was 
brought.  Under  the  direction  of  Lord  Mansfield,  the  jury  found 
a  verdict  for  the  £1,000.  On  motion  for  a  new  trial,  the  ques- 
tion was  raised,  whether  the  jury  could  give  more  or  less  dam- 
ages than  the  £1,000  ;  and  it  was  insisted  for  the  defendant  that 
they  might,  if  they  saw  fit,  give  less.  But  Lord  Mansfield  re- 
marked on  the  difference  between  covenants  in  general, 
[405]  and  covenants  secured  by  a  penalty  or  forfeiture,  and 
said,  "  In  the  latter  case  the  obligee  has  his  election.  He 
may  either  bring  an  action  of  debt  for  the  penalty,  and  recover 
the  penalty,  after  which  recovery  he  cannot  refer  to  the  cove- 
nant, because  the  penalty  is  to  be  a  satisfaction  for  the  whole  ;  or 
if  he  do  not  choose  to  go  for  the  penalty,  he  may  proceed  upon 
the  covenant,  and  recover  more  or  less  than  the  penalty,  Mies 
quoties ;  and  upon  this  distinction  they  proceed  in  courts  of 
equity."  That,  in  the  former,  to  which  this  case  belonged,  even 
equity  would  not  interfere.  "The  £1,000  is  the  particular  li- 
quidated sum  fixed  and  agreed  upon  between  the  parties,  and  is 
therefore  the  proper  quantum  of  damages."  But  the  judgment 
was  arrested  on  account  of  the  invalidity  and  illegality  of  the 
instrument.  The  doctrine  of  this  decision  has  been  very  re- 
cently recognized  in  the  English  Court  of  Exchequer,  in  an 
action  on  a  covenant  not  to  lop  trees,  under  a  given  penalty  for 
each  tree.§  The  case  seems,  however,  rather  that  of  an  agree- 
ment to  pay  a  certain  sum  on  a  contingency,  which  contingency 

*  Sloraan  v.  Walter,  1  W.Brown's  Rep.  419  &  Pul.  346,  this  latter  case  was  referred  to  by 

(1784.)  Chambre,  J.,  who  said  that  he  was  concerned 

t  In  the  case  of  Hardy  v.  Martin,  cited  in  in  it,  and  that  Lord  Mansfield,  at  the  trial  at 

notes  to  this  case,  the  same  course  was  pursued  law,  inclined  to  think  it  a  case  of  stipulated 

in  rcpjard  to  a  bond  given  by  one  partner,  on  damages. 

the  dissolution  of  a  partnership,  not  to  trade;  |  Lowe  v.  Peers,  4  Burr.  2225  (17G8). 

and  very  rightly.    In  Astley  v.  Weldon,  2  Bos.  §  Hurst  v.  Hurst,  4  Exch.  571. 


CH.    XVI.]  COVENANT    RY    DRAMATIC    PERFORMER.  463 

is  itself  dependent  on  the  choice  of  the  party  himself,  and 
belongs  more  properly  to  a  class  of  alternative  obligations  of 
which  I  have  already  had  occasion  to  speak. 

Where*  a  bond  had  been  given  by  the  plaintiff  to  the  defend- 
ant in  £236,  conditioned  that  certain  iron-work  should  be  done 
by  himself  and  another  party  for  £118  ISs.  within  six  weeks, 
and  if  not,  they  would  '•'■forfeit  and  fay'"  ^  £10  for  every  week, 
till  it  was  finished,  the  plaintiff  brought  an  action  for  work  and 
labor  against  the  defendant;  and  the  latter  pleaded  the  bond  in 
question,  averred  that  the  work  had  not  been  performed 
within  the  time  limited,  nor  until  four  weeks  thereafter,  [406] 
and  insisted  on  a  set-off  of  £40.  Upon  demurrer,  it  was 
contended  that  the  £10  was  a  mere  penalty,  and  could  not  be 
set  off  But  the  court  said  that  the  sums  offered  to  be  set  off 
were  liquidated  damages,  which  a  court  of  equity  could  not 
relieve  against;  and  Buller,  J.,  said,  "It  is  as  strongly  a  case  of 
liquidated  damages  as  can  possibly  exist,  and  is  like  the  case  of 
demurrage ;"  and  the  demurrer  was  overruled.  It  seems,  how- 
ever, to  be  rather  like  the  case  last  cited,  a  conditional  agree- 
ment, where  the  party  had  his  election  to  do  the  act  or  pay  the 
money,  and  not  having  done  the  act,  he  is  to  be  held  as  having 
made  his  election  to  pay  the  money. 

Again,  where t  an  agreement  was  entered  into  by  the  defend- 
ant to  perform  for  the  j)laintiff  at  his  theatre,  and  attend  all  re- 
hearsals, or  pay  the  established  fines  for  all  forfeitures  of  any 
kind  whatsoever.  Math  a  clause  that  either  of  the  parties  neglect- 
ing to  perform  the  agreement  should  pay  the  other  £200,  the 
declaration  averred  a  refusal  to  perform ;  plea,  non-assumpsit. 
On  trial,  a  verdict  was  had  for  £20,  with  leave  to  the  plaintiff 
to  enter  a  verdict  for  £2,000  if  the  court  should  consider  the 
agreement  one  in  the  nature  of  liquidated  damages.  Here  it 
will  be  noticed  that  the  phrase  liquidated  damages  was  not  used, 
and  that  if  the  sum  of  £200  was  not  construed  as  a  penalty 
merely,  the  non-payment  of  any  one  of  the  fines  would  have 
forfeited  the  whole  amount.     Lord  Eldon,  then  Lord  Chief  Jus- 

*  Fletcher  v.  Dyche,  2  T.  R.  32  (1787.)  which  points  to  a  penalty."     And  in  Ched- 

t  In   Tayloe    v.    Sandii'ore,   7    Wheat.    13,  dick's  Ex'rs  v.  Marsh,  1  Zahriskic,  463,  the  S. 

Marshall,  C.  J.,  commented  on  these  words,  C.  of  New  Jersey   said,  "  Where   a  contract- 

and  said,  they  were  not  so  strongly  indicative  ing  party  stipulates  upon  a  given  event  to  for- 

of  a   jjenalty  as    the  word    "  penaltij  "   itself,  feit  and  pay  a  specified  sum,  the  natural  and 

But  in  Horner  v.  Flintotf,   9  Mees.  &  Wcls.  plain  import  of  the  language  is,  that  upon  the 

678,  where   an    agreement  was   entered    into  happening   of    the   contingency   he   will   pay 

binding  the  parties  in  the  sum  of  .£100  "  as  that  precise  sum,  not  that  it  shall  stand  by 

liquidated  and  settled  damages,  to  be  paid  and  way   of  penalty  or    surety  for   damages    in- 

forfeitcd,"  the  Court  of  Exche([uer  [Parke,  B.]  cui-red." 

said  that  the  case  came  within  that  of  Kem-  %  Astley   v.    Weldon,   2   Bos.    &  Pul.   346 

ble  I'.  Farren,  hereafter  cited,  but  was  rather  (1801). 
stronger  ;  "  as  the  word  'for/tittd '  was  used. 


464  LIQUIDATED    DAMAGES.  [CH.    XVI. 

tice  of  the  Common  Pleas,  in  delivering  the,  judgment  of  the 
court,  said  that  he  had  felt  much  embarrassment  in  ascertaining 
the  principle  of  the  deci^^ions,  and  that  "  this  appeared  to  him 
the  clearest  principle,  that  where  a  doubt  is  stated  whether  the 
sum  inserted  be  intended  as  a  penalty  or  not,  if  a  certain  damage, 
less  than  that  sum,  is  made  paf/abte  upon  the  face  of  the  same  instru- 
ment in  case  the  act  intended  to  be  prohibited  be  done,  that  sum  shall 
be  construed  to  be  a  penalty,  though  the  mere  fact  of  the  sum 
being  apparently  enormous  and  excessive,  would  not  prevent  it 
from  being  considered  as  liquidated  damages."  He  went  on  to 
say,  '^  Prima  facie,  this  certainly  is  contract,  and  not  penalty,  but 
we  must  look  to  the  whole  instrument;"  and  it  was  held  a 
penalty. 

This  case  of  Astley  v.  Weldon  was  subsequently  cited 
[407]  w^ith  approbation ;  *  and  there  is  no  doubt,  according  to 
the  suggestion  of  Lord  Eldon,  that  the  form  of  the  instru- 
ment may  make  some  difference ;  as  if  it  be  a  bond,  the  pre- 
sumption will  be  that  the  greater  sum  is  intended  merely  as  a 
penalty.  This  is  not,  however,  the  necessary  construction  of 
such  an  instrument. 

The  doctrine  laid  down  in  Astley  v.  Weldon,  was  applied  in  a 
subsequent  case,t  to  a  very  similar  state  of  facts.  The  defend- 
ant had  agreed  with  the  plaintiff  to  act  as  principal  comedian  at 
Covent  Garden,  and  to  conform  to  its  rules ;  the  plaintiff  was 
to  pay  <£3  65.  8^?.  every  night  that  the  theatre  should  be  open ; 
and  the  agreement  contained  a  clause,  that  if  either  party  failed 
to  fulfill  his  agreement,  or  any  part  thereof,  or  any  stipulation 
therein  contained,  such  party  should  pay  the  other  the  sum  of 
£1,000 ;  to  which  sum  it  was  agreed  that  the  damages  should 
amount,  and  which  sum  was  declared  by  the  parties  to  be  liqid- 
dated  and  ascertained  damages,  and  not  a  penalty  or  penal  sum,  or  in 
the  nature  thereof.  The  breach  alleged  was  a  refusal  to  act  during 
the  second  season,  and  the  jury  gave  a  verdict  for  £750.  A 
motion  was  made  to  increase  this  verdict  to  £1,000,  on  the 
ground  that  that  sum  was  the  amount  liquidated  by  the  parties ; 
but  it  was  denied,  and  Tindal,  C.  J.,  said :  — 

"  It  is  undoubtedly  difficult  to  suppose  any  words  more  precise  or  explicit  than 
those  used  in  the  agreement ;  the  same  declaring  not  only  affirmatively  that  the 
sum  of  £1,000  should  be  taken  as  liquidated  damages,  but  negatively  also,  that  it 
should  not  be  considered  as  a  penalty  or  in  the  nature  thereof.  And  if  the  clause 
had  been  limited  to  breaches  which  were  of  an  uncertain  nature  and  amount,  we 
should  have  thought  it  would  have  had  the  effect  of  ascertaining  the  damages 

*  Street  v.  Eigby,  6  Ves.  815.  fKcmWe  v.  Farrcn,  6  Bing.  141. 


CII.    XVI.]  COVENANT   BY   DRAMATIC   PERFORJIER.  4G5 

upon  any  such  breach  at  £1,000.  For  we  see  nothing  illegal  or  unreasonable  in 
the  parties,  by  their  mutual  agrceinciit,  settling  the  amount  of  damages  uncertain 
in  their  nature,  at  any  sum  upon  which  they  may  agree.  In  many  cases  such  an 
agreement  fixes  that  which  is  almost  impossible  to  be  accurately  ascertained,  and 
in  all  cases  it  saves  the  expense  and  difficulty  of  bringing  witness  to  that  point. 
But  in  the  present  case,  the  clause  is  not  so  confined  ;  it  extends  to  the  breach  of 
any  stipulation  by  either  party.  If,  therefore,  on  the  one  hand,  the  plaintiff  had 
neglected  to  make  a  single  payment  of  £3  6s.  Sd.  per  day,  or  on  the  other  hand, 
the  defendant  had  refused  to  conform  to  any  usual  regulation  of  the 
theatre,  however  minute  or  unimportant,  it  must  have  been  contended  r4081 
that  the  clause  in  question,  in  either  case,  would  have  given  the  stipu- 
lated damages  of  £1,000.  But  that  a  very  large  sum  should  become  immediately 
payable  in  consequence  of  the  non-payment  of  a  very  small  sum,  and  that  the 
former  should  not  be  considered  as  a  penalty,  appears  to  be  a  contradiction  in 
terms ;  the  case  being  precisely  that  in  which  courts  of  equity  have  always  re- 
lieved, and  against  which  courts  of  law  have,  in  modern  times,  endeavored  to 
relieve  by  directing  juries  to  assess  the  real  damages  sustained  by  the  breach  of 
the  agreement.  It  has  been  argued  at  the  bar,  that  the  liquidated  damages  ap- 
plied to  those  breaches  of  the  agreement  only  which  are  in  their  nature  uncertain, 
leaving  those  which  are  certain  to  a  distinct  remedy,  by  the  verdict  of  a  jury  ; 
but  we  can  only  say,  if  such  is  the  intention  of  the  parties,  they  have  not  expressed 
it,  but  have  made  the  clause  relate,  by  express  and  positive  terms,  to  all  breaches 
of  every  kind.  We  cannot,  therefore,  distinguish  this  case  in  principle  from  that 
of  Astley  v.  Weldon,  in  which  it  was  stipulated  that  either  of  the  parties  neglect- 
ing to  perform  the  agreement  should  pay  to  the  other  of  them  the  full  sum  of 
£200,  to  be  recovered  in  his  Majesty's  courts  at  Westminster." 

The  authority  of  this  case  has  been  repeatedly  recognized.^ 

1  So  in  the  following  recent  cases:  Lampinan  v.  Cochran,  16  N.  Y.  275  ;  Foley  v.  McKee- 
gan,  4  Iowa,  1  ;  Lord  v.  Gaddis,  9  Iowa,  265  ;  Hallock  v.  Slater,  9  Iowa,  599  ;  Higginson  v. 
Weld,  14  Grav,  165;  Hannier  v.  Breidenbach,  31  Mo.  49;  Basye  y.  Ambrose,  28"Mo.  39  ; 
Nash  r.  Herniusilla,  9  Gal.  584  ;  Daily  v.  Litchfield,  10  Mich.  29;  Mills  v.  Fox,  4  E.  D.  S. 
220 ;  Beale  r.  Hayes,  5  Sandf.  640 ;  Carpenter  v.  Lockhart,  1  Ind.  434 ;  Beny  v.  Wisdom,  3 
Ohio  St.  241. 

In  a  contract  for  the  sale  of  land  for  $8,000,  payable  $5,000  on  the  1st  of  Jannary  following, 
and  the  rest  in  three  annual  instalments,  a  clause  stating  that  "  in  further  confirmation  of  the 
said  agreement,  the  parties  1)ind  themselves  each  to  the  other  in  the  penal  sum  of  $1,000,"  is 
not  to  be  considered  as  liquidated  damages  for  the  breach  of  this  agreement,  but  as  a  penalty 
superadded.     Robinson  v.  Cathcart,  2  Cranch,  C.  C.  R.  590. 

The  distinction  observed  by  Tindal,  C.  J.,  in  Kemble  v.  Farren,  in  saying  in  reference  to  the 
clause  there  considered,  that  if  it  "  had  been  limited  to  breaches  which  were  of  uncertain 
nature  and  amount,  we  should  have  thoiight  it  would  have  had  the  effect  of  ascertaining  the 
damages  upon  any  such  breach,"  has  been  fi-equcntly  lost  sight  of,  and  the  rule  broadly  laid 
down  that  the  agreement  in  all  cases  where  it  contains  various  stipulations  of  different  impor- 
tance, to  all  of  which  the  damages  named  apply,  must  be  constnied  as  importing  a  penalty.  To 
make  this  rule  precisely  correct,  it  requires  the  qualification  that  one  of  the  stipulations  must 
be  for  tlie  payment  of  a  sum  of  money  less  than  the  amount  named  as  the  damages.  In  this 
case  the  fourth  canon  of  construction  given  by  the  author  (page  421)  governs.  The  larger 
sum  is  regarded  as  a  penalty  in  reference  to  the  breach  of  such  a  stipulation,  and  as  a  conse- 
quence to  the  breach  also  of  all  the  stipulations  in  the  agreement.  The  contradiction  re- 
marked on  liy  the  same  eminent  judge  in  the  decision  last  cited,  which  exists  in  the  casewhei'c 
a  large  sum  is  made  to  "  become  immediately  payable  in  consequence  of  the  non-pajTuent  of  a 
very  small  sum,"  does  not  arise  where  none  of  the  stipulations  provide  for  the  pavment  of  a 
30 


466  LIQUIDATED    DAMAGES.  [CH.    XVI. 

So  in  a  case  in  the  Court  of  Exchequer,  where  the  sum  named 
was  held  a  penalty  only,  Parke,  B.,  said :  — 

"  The  rule  laid  down  in  Kemble  v.  Farren  was,  that  when  an  agreement  con- 
tained several  stipuhitions  of  various  degrees  of  importance  and  value,  the  sum 
agreed  to  be  paid  by  way  of  damages  for  the  breach  of  any  of  them  shall  he  con- 
strued as  a  penalty,  and  not  as  liquidated  damages,  even  though  the  parties  have 

in  express  terms  stated  the  contrary When  parties  say  that  the  same 

ascertained  sura  shall  be  paid  for  the  breach  of  any  article  of  the  agreement,  how- 
ever minute  and  unimportant,  they  must  be  considered  as  not  meaning  exactly 
what  they  say,  and  a  contrary  intention  may  be  collected  from  the  other  parts  of 
the  agreement."  * 

But  the  principle  contained  in  Kemble  v.  Farren  has  been 
since  explained  and  modified.  So  in  a  recent  case,  where  the 
defendant  on  retiring  from  business  had  covenanted  that  he 
would  not  reside  within  the  distance  of  two  and  a  half  miles 
from  his  then  residence,  and  that  if  he  did,  he  would  pay  £1,000, 
as  liquidated  damages,  and  not  as  penalty  ;  and  he  unfortunately 
fixed  his  new  residence  a  few  feet  within  the  distance,  it  was 
held  that  the  whole  sum  was  recoverable ;  Parke,  B., 
[409]  saying  that  Kemble  v.  Farren  was  "  somewhat  stretched," 
and  that  "  if  a  party  agrees  to  pay  £1,000  on  several 
events,  all  of  which  are  capable  of  accurate  valuation,  the  sum 
must  be  construed  as  a  penalty,  and  not  as  liquidated  damages. 
But  if  there  be  a  contract  consisting  of  one  or  more  stipulations 
the  breach  of  which  cannot  be  measured,  then  the  parties  must 
be  taken  to  have  meant  that  the  sum  agreed  on  was  to  be  liqui- 
dated damages,  and  not  a  penalty."  f 

So,  again,  where  the  defendant  had  contracted  not  to  practice 
as  a  performer  within  a  certain  district,  he  bound  himself  to  the 
plaintiff  in  the  sum  of  £5,000,  "  as  and  by  way  of  liquidated 

*  Homer  v.  Flintoff,  9  Mees.  &  Wels.   678.         t  Atkyns   v.   Kinnier,   4  Exch.  776.     See 
See  also,  Boys  v.  Ancell,  5  Bing.  (N.  C.)  390;     also,  Galsworthy  v.  Strutt,  1  Exchequer,  659. 
Beckham  v.   Drake,  8  Mees.  &  Wels.  846 ;  ^ 
Edwards  v.  Williams,  5  Taunt.  247. 

specified  amoimt.  This  distinction  was  pointed  Out  by  the  Court  of  Appeals  of  New  York  in 
the  case  of  Cotheal  v.  Talmage,  9  N.  Y.  551,  and  again  carefully  stated  by  the  same  tribunal 
after  reconsideration,  in  Clement  v.  Cash,  21  N.  Y.  253.  See  also  Thoroughgood  v.  Walker, 
2  Jones  (Law),  N.  C.  15.  Where  a  case  arises  not  within  this  qualification  of  the  rule,  but 
the  sum  fixed  is  evidently  disproportioned  to  the  actual  damage,  to  an  extent  even  which,  in 
Lord  Eldon's  la.nguage  in  Astley  v.  Weldon,  is  "  enormous  and  excessive,"  the  remedy,  if  the 
language  liquidating  the  damages  is  fi-ee  from  doubt,  is  in  equity  only.  See  Clement  v.  Cash, 
supra.  It  should  seem,  however,  where  the  distinction  between  legal  and  equitaljje  procedure 
is  abolished,  that  in  all  cases  within  the  general  rule  under  consideration,  where  the  defendant 
is  entitled  to  equitable  relief,  he  should  receive  it  in  the  plaintiff's  action,  and  that  the  measure 
of  the  plaintiff's  damages  should  in  such  cases  uniformly  be,  not  the  sum  named  in  the  con- 
tract, but  the  amount  actually  sustained  by  its  breach. 
1  Reversed  on  another  ground.     11  Mees.  &  Wels.  315,  and  2  C.  &  F.'s  H.  of  L.  Cases,  579. 


CH.    XVI.]  LIQUIDATED    DAMAGES.  467 

damages,  and  not  of  penalty ;  "  tlie  authority  of  Kemble  v.  Far- 
ren  was  invoked  for  the  defendant;  but  the  court  said:  — 

"  TVhcre  the  deed  contains  several  stipulations  of  various  degrees  of  impor- 
tance as  to  some  of  which  the  damages  might  be  considered  liquidated,  whilst  for 
others  they  may  be  deemed  unliquidated,  and  a  sum  of  money  is  made  payable 
on  a  breach  of  any  of  them,  the  courts  have  held  it  to  be  a  penalty  only,  and  not 
liquidated  damages.  But  when  the  damage  is  altogether  uncertain,  and  yet  a 
definite  sum  of  money  is  expressly  made  payable  in  respect  of  it  by  way  of  liqui- 
dated damages,  those  words  must  be  read  in  the  ordinary  sense,  and  cannot  be 
construed  to  import  a  penalty."  *  ^ 

Where  suit  was  brouo-ht  on  an  agreement  made  between  two 
coach  proprietors,  that  in  consideration  of  a  certain  sum  of 
money,  the  defendant  would  withdraw  his  stage-coach,  and  not 
concern  himself  in  driving  any  other  coach  on  that  road,  and 
the  agreement  contained  a  clause  that  for  its  due  and  punctual 
performance,  each  of  the  parties  bound  himself  to  the  other  "  in 
the  sum  of  .£500,  to  be  considered  and  taken  as  liquidated  dam- 
ages, or  sum  of  money  forfeited  or  due  from  the  one  party  to 
the  other,  who  shall  neglect  or  refuse  to  perform  his  part  of  the 
agreement ; "  it  was  held  not  a  penalty,  but  liquidated  damages, 
from  which  the  court  would  not  depart.!  ^ 

And  the  same  point  was  decided  in  a  very  analogous 
case,  at  an  early  day,$  by  the  Supreme  Court  of  Massa-  [410] 
chusetts,  where  the  opinion  was  delivered  by  Mr.  Justice 
Sedgwick. 

A  good  deal  of  stress  has  been  in  different  cases  laid  on  the 
words  of  the  contract.     At  Nisi  Prius,  Abbott,  C.  J.,  is  reported 

y  *  Green,  Ex'r,  v.  Price,   13   Mees.  &  Wels.  linson   v.  Clark,  14  M.  &  Wels.   187,  where 

695,    and   Price   v.  Green,    16  M.  &  W.  346.  the  doctrine  of  Green  v.  Price  was  affirmed. 
For  another  recent  case  in  England,  on.  the        j  Barton  v.  Glover,  at  Nisi  Prius,  1   Holt's 

subject  of  liquidated  damages,  under  an  agree-  N.  P.  Cases,  43. 
ment  not  to  practice  as  surgeon,  etc.,  see  Kaw-        J  Pierce  v.  Fuller,  8  Mass.  R.  223. 

1  See  Mercer  v-  Irving,  1  E.  B.  &  E.  563 ;  Shreve  v.  Brereton,  51  Penn.  St.  175. 

'■^  So  also  in  Sainter  v.  Ferguson,  62  Eng.  Com.  Law  R.  (7  C.  B.)  716,  aiid  Duffy  v.  Shockey 
11  Ind.  70.  So,  where  one  ha\'ing  sued  the  owner  of  a  laboratory  in  the  neighborhood  for 
damages  to  his  real  estate  from  the  operations  of  the  laboratory,  the  parties,  pending  the 
suit,  entered  into  an  agreement  by  whicli  the  plaintiff  discontinued  it,  and  the  defendant  agreed 
to  stop  the  laboratory  business  within  live  j-ears,  or  pay  $3,000  as  liquidated  damages,  and  the 
defendant  did  not  close  the  business  within  the  time,  the  court  held  that  the  83,000  were  liqui- 
dated damages,  refusing  to  consider  the  foct  alleged  by  the  defendant  that  the  mode  of  con- 
ducting the  business  had  been  so  changed  that  it  was  thereby  rendered  entirely  harmless  and 
imobjectionable,  as  affecting  the  question.  Grasselli  r.  Lowden,  11  Ohio  St.  349.  And  see 
to  the  same  purpose,  Streetcr  v.  Rush,  25  Cal.  67 ;  also  Jaquith  v.  Hudson,  5  Mich.  123  ; 
Dunlop  v.  Gregory,  10  N.  Y.  241.  So  in  general  where  a  certain  sum  has  been  agreed  upon 
as  damages  for  the  violation  of  an  agreement  restraining  a  part\-  from  the  use  of  a  traile  or 
profession,  it  is  considered  as  liquidated  damages.  Mott  v.  Mott,  11  Barb.  (N.  Y.)  127,  and 
cases  cited ;  see  also,  Reynolds  v.  Bridge,  6  Ellis  &  B.  528.  But  compare  Smith  v.  Wain- 
wright,  24  Vt.  97. 


4GS  LIQUIDATED    DAMAGES.  [ciI.    XVI. 

to  have  Raicl,*"  "  that  whatever  the  expressions,  and  in  whatever 
mode  the  agreement  be  made,  whether  the  stipulation  is  for 
liquidated  damages  or  for  a  penalty,  the  plaintiff  shall  recover 
such  damages  as,  upon  a  view  of  the  whole  case,  the  jury  shall 
think  fit  -to  give,"  excepting,  at  the  same  time,  contracts  under 
seal.  It  is  difficult,  however,  to  believe  that  any  such  language 
was  used  by  a  judge  so  able  as  Lord  Tenterden.  At  all  events, 
this  case  has; been  distinctly  overruled,!  and  is  opposed  to  the 
whole  current  of  authorities. 

Where  the  word  "  Penalty  "  is  used,  it  is  usually  conclusive. 
—  Though  the  intention  of  the  parties  is  the  great  guide  of  in- 
quiry, still,  in  one  aspect,  the  language  may  be  conclusive ;  and 
it  seems  to  be  settled  that  if  the  word  penalty  or  iwnal  be  used 
(subject  to  a  single  exception  hereafter  stated ),$  no  construction 
shall  convert  the  agreement  into  one  for  liquidated  damages ; 
though  the  reverse  is  far  from  being  the  case.§ 

Where  ||  a  sum  fixed  on  by  the  parties  was  held  conclusive, 
Park,  J.,  in  giving  judgment,  referred  to  the  case  of  Astley  v. 
Weldon,  and  laid  stress  on  the  fact,  that  the  term  liquidated  dam- 
ages had  not  been  there  used. 

But  what  if  both  expressions  be  used  ?  In  a  case,T[  where 
an  agreement  had  been  entered  into,  not  to  carry  on  the  busi- 
ness of  a  surgeon,  in  consideration  of  the  purchase  of  the  good- 
will, with  a  clause  that  both  parties  were  bound  to  each  other 
in  the  fenal  sum  of  £^00,  as  and  hj  ivay  of  liquidated  damages  ;  the 
plaintiff  agreeing  on  his  part  to  pay  a  bill  of  £170,  —  it 
[411]  was  held  a  penalty.  It  is  plain  that  this  case  came 
within  the  principle  of  Astley  v.  Weldon,  as  £500  might 
become  the  damages  for  not  paying  £170. 

But  in  a  subsequent  case,**  a  somewhat  similar  agreement 
was  entered  into,  under  a  penal  sum  of '£600,  to  he  recovered  as  and 
for  liquidated  damages ;  and  it  was  held  the  latter.  Best,  C.  J., 
at  Nisi  Prius,  said,  — 

"  The  law  relative  to  liquidated  damages  has  always  been  in  a  state  of  great 
uncertainty.     This  has  been  occasioned  by  judges  endeavoring  to  make  better 

*  Randall  v.  Everest,  2  Car  &  Payne,  577  ;  a  certain  sum,  the  actual  damages  to  be  after- 

S.  C.  1  Mood.  &  Malk.     In  Longridge  v.  Dor-  wards  ascertained, 

ville,  5  B.  &  Aid.   117,  it  was  held,  that  the  t  Crisdee  v.  Bolton,  3  Car.  &  P.  240. 

giving  up  of  a  suit  instituted  for  the  purpose  |  Ne-exeat  bonds,  and  other  bonds  of  a  like 

of  trying  a  doubtful  question,  and  consenting  character. 

to   deliver  up  a  ship  which  might  otherwise  §  See  Smith  v.  Dickenson,  3  B.  &  Pull.  630 

have  been  detained  until  the  security  required  and  632. 

was  given,  was  a  good  cousidei'atiou  to  sup-  ||  Reilly  v.  Jones,  1  Bing.  302. 

porta  promise  to  pay  damages  not  to  exceed  IT  Davies  v.  Peuton,  6  B.  &  Cres.  216. 

«  Crisdee  v.  Bolton,  3  Car.  &  P.  24Q> 


CH.    XVI.]  EFFECT    OF   THE   LANGUAGE   EMPLOYED.  4C9 

contracts  for  parties  than  they  have  made  for  themselves.  I  think  that  tlie  par- 
ties to  contracts,  from  knowing  exactly  their  own  situations  and  objects,  can 
better  appreciate  the  consequences  of  their  failing  to  obtain  those  objects,  than 
either  judges  or  juries.  Whether  a  contract  be  under  seal  or  not,  if  it  clearly 
states  what  shall  be  paid  by  the  party  who  breaks  it  to  the  party  to  whose  preju- 
dice it  is  broken,  the  verdict  in  an  action  for  the  breach  of  it,  should  be  for  the 
stipulated  sum.  A  court  of  justice  has  no  more  authority  to  put  a  different  con- 
struction on  the  part  of  an  instrument  ascertaining  the  amount  of  damages,  than 
it  has  to  decide  contrary  to  any  other  of  its  clauses.  Our  office  is  to  ascertain 
the  intent  of  the  parties,  and  if  not  contrary  to  law,  to  carry  their  intent  into 
execution.  In  the  present  case,  no  evidence  has  been  adduced  of  the  amount  of 
damage  sustained  by  the  plaintiff.  In  this,  and  in  most  other  cases  of  this  sort, 
it  would  be  impossible  to  give  such  evidence  as  would  enable  juries  to  do  com- 
plete justice.  The  claim  for  damages  must  depend  not  only  on  things  which 
have  been  done,  but  on  what  may  be  done,  which  it  is  impossible  to  prove  ;  on 
the  value  of  the  customers  which  the  conduct  of  the  vendor  of  the  lease  has 
attached  to  him,  and  what  numbers  his  future  conduct  in  the  house  that  he  has 
taken  is  likely  to  draw  to  him.  We  can  have  no  safer  guide  to  go  by  in  deciding 
on  the  amount  of  compensation  for  breach  of  contract  in  such  cases,  than  that 
estimate  which  the  parties,  each  knowing  all  the  circumstances  of  the  case,  and 
anxiously  taking  care  of  their  respective   interests,  have  agreed  on. 

"  I  cannot  subscribe  to  the  doctrine  attributed  to  Lord  Tenterden,  in  Randall 
V.  Everest.  If  it  be  doubtful,  from  the  terms  of  the  contract,  whether  the  parties 
mean  that  the  sum  mentioned  in  it  shall  be  a  penalty  or  liquidated  damages,  then 
I  should  incline  to  consider  the  clause  as  creating  a  penalty,  and  not  giving  stip- 
ulated damages. 

"  In  this  case  the  sum  of  £500  is  to  be  paid  for  the  doing  of  one  thing  only, 
namely,  setting  up  a  victualing-house  within  one  mile  of  the  house  transferred  to 
the  plaintiff.  It  is  called  a  penal  sum ;  and  I  will  admit  that  the  parties  con- 
sidered it  as  something  more  than  compensation  ;  but  they  have  expressly  agreed 
that  this  penal  sum  shall  be  recovered  as  and  for  stipulated  damages.  When 
the  defendant  has  so  unequivocally  agreed,  that  if  he  ever  did  what  it  has  been 
proved  that  he  did,  he  would  pay  £500,  what  right  has  he  now  to  say  that  the 
verdict  against  him  ought  not  to  be  of  this  amount  ?  " 

American  Decisions.  —  The  decisions  in  this  countr}'  [412] 
are  now  to  be  examined.  Our  courts  will  be  found  gen- 
erally to  be  inclined  to  treat  a  fixed  sum  as  a  penalty,  and  to 
hold  that  the  real  damages  are  to  be  inquired  into.  Thus,* 
where  the  plaintiff  had  agreed  to  convey  to  the  defendant  seven 
hundred  acres  of  land  in  exchange  for  a  farm,  valued  at  $3,750, 
with  a  further  covenant  that  in  case  of  failing,  the  party  not 
fulfilling  the  covenant  "  should  pay  to  the  other  party  the  sum 
of  §2,000  damages,"  the  Supreme  Court  of  New  York  held  this 

*  Dennis  v.  Cummins,  3  J.  Cases,  297. 


470  LIQUIDATED    DAMAGES.  [cil.    XVI. 

to  be  a  penalty ;  and  stress  was  laid  on  the  great  discrepancy 
between  the  value  of  the  property  to  be  exchanged  and  the 
damages  for  not  fulfilling  the  contract.-^ 

Where  an  action  *  was  brought  on  an  agreement,  by  which 
the  defendant,  in  consideration  of  $500  received  in  full  for  fifty 
acres  of  land,  agreed  to  convey  the  land  in  one  year,  or  in  lieu 
thereof  to  pay  $800 ;  in  this  case,  the  words  of  the  contract 
were  held  to  be  too  express  to  be  questioned,  and  the  land  not 
having  been  conveyed,  the  sum  was  treated  as  liquidated  dam- 
ages. This  case,  however,  properly  belongs  to  the  class  of  alter- 
native contracts,  which  I  have  already  noticed  ;  and  the  distinc- 
tion has  been  well  pointed  out  by  a  learned  and  very  able 
judge. t  Where,  in  consideration  of  the  conveyance  of  certain 
city  lots  for  $21,000  only^  the  defendant  covenanted  that  he 
would  erect  on  or  before  the  1st  of  May,  1836,  within  two  years, 
two  brick  houses  thereon,  or  in  default  thereof,  pay  $4,000  after 
the  1st  of  May,  1836,  and  Bronson,  J.,  said, — 

"Tliis  does  not  belong  to  the  class  of  cases  in  which  the  question  of  liquidated 
damages  has  usually  arisen.  It  will  be  found  in  most,  if  not  all  of  those  cases, 
that  there  was  an  absolute  agreement  to  do  or  not  to  do  a  particular  act,  followed 
by  a  stipulation  in  relation  to  the  amount  of  damages  in  case  of  a  breach.  But 
here  there  is  no  absolute  engagement  to  build  the  houses.  It  was  optional  with 
the  defendant  whether  he  would  build  them  or  not." 

And  mainly  on  the  ground  that  the  defendant  had  made  his 
election  not  to  build,  but  to  pay,  and  that  the  court  would  not 
modify  or  reform  the  agreement  between  the  parties,  the  sum 

of  $4,000  was  held  to  be  the  measure  of  damages.^ 
[413]       Where  an  agreement  had  been  made§  by  which  the 

defendant  covenanted,  on  the  first  of  January  then  next, 
to  convey  certain  lands,  and  the  plaintift'  agreed  to  pay  the 
price,  $1,250,  on  the  delivery  of  the  deed,  and  in  case  of  failure, 
they  bound  themselves  each  to  the  other  in  the  sum  of  $500, 
which  they  consented  to  fix  and  liquidate  as  the  amount  of 

*  Slosson  V.  Beadle,  7  J.  E.  72.  as  here  where  the  house  might  have  been  half 

t  Bronson,    J.,    in    Pearson    v.  Williams'  built,  but  only  where  the  contract  must  be 

Adm'r,   24  Wend.  244  ;  S.  C.   in  Error,    26  wholly  performed,  or  left  wholly  unperformed. 

Wend.  630.  It  is  plain  that  this  consideration  did  not  ap- 

\  When  this  case  came  into  the  Court  of  ply  to  this  case.     But  there  may  be  instances 

Errors,  Mr.  Senator  Ely  moved  to  reverse  the  where  the  suggestion  will  be  found  not  without 

jiulgment,  on  the  ground  that  the  doctrine  of  weight. 

liquidated  damages  ought  never  to  apply  to  a  §  Hasbrouck  v.  Tappen,  15  J.  R.  200. 

case  which  admitted  of  partial  performance, 

1  So  in  Pennsylvania,  a  bond  in  a  specified  sum  conditioned  that  the  obligor  convey  certain 
lands  in  exchange  for  otliers  conveyed  to  him  by  the  obligee,  is  not  in  the  nature  of  stipulated 
damages.  The  measure  of  the  damages  is  the  value  of  the  lauds  which  should  have  been  con- 
veyed.    Burr  V.  Todd,  41  Penn.  206 


en.  XVI.]  USURY.  471 

damages  to  be  paid  by  the  failing  party ;  in  this  case  it  was  held 
to  be  too  clear  for  question ;  and  the  sum  of  ^500  was  to  be  re- 
garded as  liquidated  damages.  The  plaintiff  having  by  parol 
enlarged  the  time  for  the  delivery  of  the  deeds  (although  to  no 
fixed  day),  it  was  insisted  that  such  extension  was  a  waiver  of 
the  liquidated  damages,  and  that  the  plaintiff  could  only  recover 
his  actual  loss ;  but  the  court  held  otherwise,  and  that  the  stated 
sum  was  still  to  be  the  measure  of  compensation. 

In  all  cases  where  a  party  relies  on  the  payment  of  liquidated 
damages  as  a  discharge,  it  must  clearly  appear  from  the  con- 
tract that  they  were  to  be  paid  and  received  absolutely  in  lieu 
of  performance ;  and  it  is  also  settled  here,  as  we  have  seen  in 
England,*  that  a  covenant  on  a  certain  contingency  to  pay  to 
another  person  a  sum  of  money,  with  a  provision  that  if  he  fails, 
then  to  pay  a  larger  sum  as  liquidated  damages,  would  be 
wholly  incompatible  with  our  laws  in  restraint  of  usury .^ 

Both  these  points  were  ruled  in  a  casef  already  referred  to 
where  the  plaintiff  had  made  a  bond  and  mortgage  to  a  third 
parjty  in  the  sum  of  $5,000,  which  had  been  assigned  to  the  de- 
fendant, and  a  covenant  was  then  entered  into  between  them, 
that  three  several  farms  belonging  to  the  plaintiff  and  covered 
by  the  mortgage,  should  be  appraised  by  arbitration ;  that  if 
their  value  fell  short  of  the  defendant's  claim  he  should  have 
them  (i  e.  the  three  farms) ;  if  they  exceeded  his  demands,  he 
should  pay  the  balance,  with  a  stipulation  that  either  party  fail- 
ing should  forfeit  to  the  other  $500  as  liquidated  damages. 
The  farms  were  assessed,  a  balance  found  in  favor  of  the 
plaintiff,  and  the  defendant  refused  to  pay.  The  sum  of  [414] 
$500  was  claimed;  and  the  defendant  admitted  that  he 
was  bound  to  pay  that  sum  as  liquidated  damages,  but  insisted 
that  on  such  payment,  the  whole  agreement  was  to  be  rescinded  ; 
and  as  his  $5,000  bond  remained  due,  he  offered  to  offset  the 
$500  against  the  $5,000  due  on  the  bond,  and  asked  that  the 
balance  should  be  certified  in  his  favor.  But  the  jury,  under 
the  charge  of  the  court,  found  a  verdict  for  the  plaintiff  for  the 
balance  fixed  by  the  appraisers ;  and  on  a  motion  for  a  new 
trial,  this  was  held  right.  It  was  held,  so  far  as  the  defendant 
was  concerned,  that  the  stipulated  damages  were  not  intended 

*  In  On-  V.  Churchill,  I  H.  Black.  232;  t  Gray  u.  Crosby,  18  J.  R.  219;  s»;)ra,420. 
supra,  420. 

1  So  a  bond  in  a  given  sum  conditioned  that  certain  incumbrances  on  real  estate  shall  be  re- 
moved (within  a  certain  time),  is  not  in  the  nature  of  liquidated  daniaj^cs.  A  breach  of  its 
condition  is  compensated  by  damages  equal  to  the  injury.  Eobeson  v.  Whitesides,  16  Serg. 
&  R.  320 ;  Robinson  v.  Bakewell,  25  Penn.  424. 


472  LIQUIDATED    DAMAGES.  [CH.    XVI. 

in  lieu  of  a  "  performance  of  anything  to  be  done,  nor  as  an 
extinguishment  of  the  appraisement  itself;  and  that  as  to  the 
plaintiff,  he  could  only  recover  the  exact  balance  due  him." 

In  the  same  State,*  a  contract  to  pay  three  hundred  and  sixty 
dollars  for  twelve  cows  and  twelve  calves,  in  four  years,  was  held 
to  be  in  the  nature  of  a  penalty  merely,  and  that  the  plaintiff 
could  only  recover  the  value  of  the  cows  and  calves.  And  this 
on  the  same  grounds  as  in  the  last  two  cases. f 

In  a  subsequent  case,t  the  following  facts  were  presented: 
By  articles  of  dissolution  between  the  plaintiff's  intestate  and 
the  defendant,  the  defendant  agreed  to  pay  $3,000  in  various 
instalments,  of  which  the  last  was  one  of  $750,  on  the  1st  of 
December,  1812.  The  articles  then  recited,  that  the  object  was 
for  the  intestate  entirely  to  quit  the  business,  and  for  the  de- 
fendant to  continue  it,  and  that  such  intention  was  the  basis  of 
allowing  the  $3,000,  and  then  declared,  that  in  case  the  intes- 
tate should  be  concerned  in  or  carry  on  the  same  kind  of  busi- 
ness within  twenty  miles  from  the  present  stand,  the  last  in- 
stalment should  not  be  paid.  The  action  was  for  the  last  in- 
stalment; in  answer  to  which  the  defendant  proved  that  the 
plaintift^'s  intestate  had  recommenced  the  partnership  business 
within  four  miles.  It  was  insisted  that  the  contract  was  in 
the  nature  of  a  penalty ;  but  the  court  said,  "  A  more 
[415]  suitable  case  for  the  liquidation  of  damages  by  the  par- 
ties themselves  can  hardly  be  imagined;"  and  the  non- 
suit which  was  directed  at  the  trial  was  sustained.-^ 

The  rule  laid  down  in  Astley  v.  Weldon,  and  already  stated, 
that  when  the  agreement  contains  formal  distinct  covenants 
on  which  there  may  be  divers  breaches,  some  of  an  uncertain 
nature,  and  others  certain,  with  one  entire  sum  specified  to 
be  paid  on  breach  of  performance,  then  the  contract  will  be 
treated  as  one  for  a  penalty  and  not  liquidated  damages,  was 
approved  in  New  York,§  where  a  bond  was  given  in  the  penal 
sum  of  $10,000  conditioned  that  the  defendant  would  not  prac- 
tice as  a  physician,  and  if  he  did,  that  he  should  pay  $500  for 
every  month  that  he  so  practiced.  Here  the  $10,000  was  held 
to  be  penalty,  and  the  $500  stipulated  damages.  And  the  same 
rule  has  been  laid  down  in  New  Jersey.il  ^ 

*  Spencer  r.  Tilden,  5  Cowen,  144.  §  Smith  y.  Smith,  4  Wend.  468.     See   also, 

t  In  Nobles  v.  Bates,  7  Cowen,  307,  this  de-  Spear  !-'.  Smith,  1  Denio,  464. 

cision  was  said  to  go  on  the  oppressiveness  of  ||  Cheddick's  Ex'r  v.  Marsh,  1  Zabriskie  R. 

the  contract.  463. 
t  Nobles  V.   Bates,   7   Cowen,  307.     See  a 

similar  English  case,  ante,  428. 

1  Soo  ante,  409,  note  2.  2  ggg  Niver  v.  Rossman,  18  Barb.  50. 


en.    XVI.]  AGREEMENT   TO    SELL  NEWSPAPER.  4V3 

In  a  case  *  where  the  plaintiff  had  entered  into  an  agreement 
with  the  defendants  to  sell  them  two  lots  of  ground  on  certain 
terms,  upon  compliance  with  which  the  plaintiff  was  to  give  a 
deed,  and  to  this  a  clause  was  added,  "  that  if  the  parties  of  the 
second  part  should  fail  to  perform  this  contract,  or  any  part 
therein  specified,  they  will  pay  the  said  party  of  the  first  part 
^25,  as  liquidated  da)ua</cs,  and  give  immediate  possession  to  the 
said  party  of  the  first  part,"  the  plaintiff  brought  an  action  of 
covenant  for  breach  of  the  condition.  The  defendant  pleaded 
tender  of  $2-5.  But  the  Supreme  Court  of  New  York  said, 
"  There  is  nothing  in  this  case  which  authorizes  us  to  say  that 
it  was  in  the  contemplation  of  the  parties  that  the  defendants 
might  relieve  themselves  from  their  covenants  to  pay  the  price 
of  the  land  by  paying  the  sum  agreed  upon  as  stipulated  dam- 
ages, and  surrendering  possession ;  "  and  the  plea  was,  for  this 
as  well  as  for  other  reasons,  held  bad. 

Again,!  where  the  defendant  covenanted  to  assign  to  the 
plaintiff  a  lease,  and  to  deliver  possession  thereof,  with  the  fol- 
lowing provision  :  "  And  I  further  covenant  that,  in  case  of  non- 
performance of  any  or  either  of  the  above  covenants,  I  will  for- 
feit the  sum  of  five  hundred  dollars,  as  the  liquidated  dam- 
ages to  the  said  Knapp,"^  tlie  same  court  said,  "  It  is  a  [416] 
clear  case  of  liquidated  damages^  if  it  is  in  the  power  of 
parties  to  liquidate  them." 

The  subject  was  much  considered  in  a  subsequent  case  :t  the 
defendant,  Williams,  for  $3,000,  sold  to  the  plaintiff  a  newspa- 
per establishment,  called  the  "  Utica  Sentinel,"  and  all  his  inter- 
est in  the  subscription,  good-will,  and  patronage  of  the  paper, 
together  with  the  types,  etc.,  for  $500.  In  consideration  of  this 
the  plaintiffs  on  their  part  covenanted  to  pay  to  Williams  $3,500, 
namel}^,  $3,000  for  the  patronage  and  good-will,  etc.,  and  $500 
for  the  types,  etc.  And  then  followed  a  covenant,  by  which  the 
defendants  agreed  that  they  would  not  establish  any  paper  in 
the  city  of  Utica,  nor  suffer  any  paper  to  be  established  in  any 
building  owned  by  them,  nor  aid  nor  assist  in  such  publication ; 
and  to  this  was  added  a  clause  binding  the  defendants  to  the 
strict  and  faithful  performance  of  this  covenant,  and  every  part 
thereof,  in  the  sum  of  $3,000 ;  and  declaring  that  the  said  sum 
of  $3,000  should  be,  and  was  thereby  fixed  and  settled  as  liqui- 
dated damages,  and  not  as  a  penal  sum  for  any  violation  of  the 
preceding  covenant,  or  any  of  its  terms  or  conditions.  The 
breach  alleged  was  the  publication  of  another  paper.     The  cases 

*  Ayres  v.  Peas,  12  Wend.  393.  t  Dakin  V.  Williams,  17  Wendell,  447 ;  and 

t  Knapp  V.  Maltbj,  13  Wendell,  587.  S.  C.  in  Error,  22  Wend.  201. 


474  LIQUIDATED    DAMAGES.  [CH.   XVI. 

which  we  have  heen  considering  were  reviewed,  and  the  J 3,000 
was  held  to  be  liquidated  damages,  both  by  the  Supreme  Court 
and  Court  of  Errors.     The  Supreme  Court  held  that — 

"  It  was  only  the  province  of  the  court  to  inquire  into  the  intent  of  the  parties, 
and  that  whether  the  bargain  was  wise  or  foolish  was  not  for  them  to  decide  ; " 
and  went  on  to  say  :  "  In  the  case  of  Astley  v.  Weldou,  Lord  Eldon  repudiates  the 
idea  that  had  been  thrown  out  in  some  of  the  previous  cases,  that  if  the  sum 
would  be  enormous  and  excessive  considered  as  liquidated  damages,  it  should  then 
be  taken  as  a  penalty ;  and  maintains  the  ability  of  the  party  to  make  a  contract 
for  himself  in  fixing  the  amount  of  damages,  as  well  as  in  respect  to  any  other 
matter.  All  the  judges  adopt  the  position  that  the  question  must  be  determined 
upon  the  meaning  and  intent  of  the  parties.  A  principle  is  stated  in  that  case 
which  has  since  been  frequently  applied,  and  upon  which  the  case  was  finally 
disposed  of,  namely,  that  where  a  doubt  appears  whether  the  sum  inserted  be 
intended  as  a  penalty  or  not,  if  a  certain  damage,  less  than  this  sum,  be  made 
payable  \\[)o\\  the  face  of  the  instrumeut  in  case  the  breach  occurs,  the  same 
shall  be  construed  to  be  a  penalty  It  then  partakes  of  the  character  of  a  com- 
mon money  bond,  where  the  payment  of  a  small  sum  is  secured  by  the 
|_417j  forfeiture  of  a  large  one  in  case  of  default.  In  that  case  there  were  sev- 
eral stipulations  in  the  articles  of  agreement ;  and  then,  on  either  neglect- 
ing to  perform  on  his  part,  the  sum  of  £200,  to  be  recovered  in  any  of  his  Maj- 
esty's courts  of  record,  was  to  be  paid.  Some  of  the  breaches  were  in  their  nature 
uncertain,  while  others  were  certain  ;  and  as  the  £200  were  given  to  secure  the 
fulfillment  of  all  of  them  upon  the  principle  above  stated,  the  court  concluded  it 
was  to  be  deemed  in  the  light  of  a  penalty." 

Chambre,  J.,  observed :  "  That  there  was  one  case  in  which  the  sum  agreed 
for  must  always  be  considered  as  a  penalty :  and  that  is  where  the  payment  of  a 
smaller  sum  is  secured  by  a  larger ; "  and  he  held  that  the  court  could  not  garble 
the  covenants,  and  hold  that  in  respect  to  those  certain  the  larger  sum  was  to  be 
deemed  a  penalty,  but  damages  liquidated  as  to  those  uncertain,  as  the  concluding 
clause  applied  equally  to  all  of  them.  The  decision  of  the  case  of  Kemble  v. 
Farren,  the  strongest  one  in  the  books  for  the  defendants,  was  put  upon  this  prin- 
ciple by  Chief  Justice  Tindal.  There,  some  of  the  strongest  stipulations  were 
certain,  such  as  the  one  in  which  the  plaintiff  had  agreed  to  pay  the  defendant  £3 
6s.  8f/.  every  night  in  which  the  theatre  would  be  open  during  the  season ;  others 
were  uncertain.  The  language  of  the  parties  in  fixing  the  sura  in  case  of  neglect 
to  fulfill  the  agreement  or  any  of  the  stipulations,  was  as  particular  and  specific  as 
in  the  case  under  consideration,  using  affirmative  and  negative  terms  to  exclude 
the  idea  of  a  penalty  ;  but  as  it  extended  to  the  breach  of  every  stipulation,  those 
certain  as  well  as  those  uncertain,  the  case  was  supposed  to  be  brought  directly 
within  the  principle  of  Astley  v.  Weldon.  The  chief  justice  concedes  that  it  was 
difficult  to  suppose  words  more  precise  or  explicit,  and  admitted  that  if  the  clause 
bad  been  limited  to  breaches  which  were  of  an  uncertain  nature  and  amount,  the 
court  would  have  considered  it  as  having  the  effect  of  ascertaining  the  damages  of 


CII.    XVI.]  AGREEMENT    TO    PELL   NEWSPAPER.  475 

any  such  breach  at  the  £1,000  ;  and  he  adds :  "  For  we  see  nothinp;  illegal  or  un- 
reasonable in  the  parties,  by  their  mutual  agreement,  settling  the  amount  of  dam- 
ages uncertain  in  their  nature  at  any  sum  upon  which  they  may  agree."  The  case 
under  consideration  falls  directly  within  the  above  distinction ;  for  the  concluding 
clause  here,  securing  the  fulfillment  of  the  preceding  covenant,  applies  to  stipu- 
lations wholly  uncertain  ;  and  it  may  be  added  that,  from  the  nature  of  the  case, 
it  would  be  impossible  for  a  court  and  jury  to  ascertain  with  any  degree  of  accuracy 
the  amount  of  damages  actually  arising  out  of  the  breacli  of  them  to  the  preju- 
diced party ;  and  it  was,  therefore,  a  very  fit  and  proper  case  for  the  liquidation 
of  the  amount  by  the  parties  themselves.  They  have  adopted  the  precise  sum 
which  the  plaintiffs  were  to  receive  for  the  good-will  and  patronage  of  the  press 
—  the  very  benefit  which  this  clause  was  intended  more  effectually  to  secure  to 
the  purchasers.* 

And  in  the  Court  of  Errors,  the  chancellor  in  pronouncing  his 
opinion,!  laid  stress  on  the  fact  that,  without  the  stipulation,  the 
damages  were  wholly  uncertain,  and  incapable  of  estima- 
tion otherwise  than  by  conjecture.     In  a  recent  case  in  [418] 
the  same  State,1:  the  preference  of  the  law  to  construe 
the  stated  sum  as  a  penalty,  was  very  strongly  declared :  — 

"  I  do  not  think  that  penalties  like  this  (for  they  are  seldom  anything  other 
than  penalties)  should  be  favored.  I  yielded  my  opinion,  in  Dakin  v.  Williams, 
for  the  reason  which  there  governed  the  chief  justice,  namely,  because,  on  the 
whole  contract,  we  could  not  doubt  the  parties  intended  that  the  damages  should 
be  paid  for  violating  the  stipulation  in  question  ;  and  because  it  was  difficult,  not 
to  say  impossible,  from  its  nature,  that  the  damages  for  a  breach  could  be  ascer- 
tained by  a  jury.  The  latter  may  be  said  here  of  failing  to  give  the  five  days' 
notice ;  but  we  want  the  clear  intent  of  the  parties,  that  such  an  omission  was  to 
be  punished  by  such  a  disproportionate  fine.  It  is  evidently  upon  that  clear  intent 
that  Dakin  v.  Williams  went,  and  that  could  the  chief  justice  have  brought  himself 
to  doubt,  he  would  never  have  consented  to  apply  the  penalty.  It  is  commonly 
hard  enough  in  such  cases  that  we  should  be  bound  by  the  letter ;  though  such  is 
the  result  of  the  cases  where  liquidation  is  impossible.  The  creditor  is  a  very  apt 
apprentice  in  the  art  of  enlarging  any  opening  which  the  law  leaves  him  for  en- 
croachment ;  while  the  debtor,  especially  if  he  be  poor  or  embarrassed,  is  most 
complying ;  and,  could  he  have  his  way,  would  prove  his  own  worst  enemy. 
Hence  our  usury  laws,  and  the  system  of  equitable  rehef  against  penalties.  To 
allow  the  use  of  penalties  as  damages,  at  the  unlimited  discretion  of  the  parties, 
would  lead  to  the  most  terrible  oppression  in  pecuniary  dealings.  The  fair  and 
just  rights  of  the  creditor  are  worthy  of  all  protection,  but  no  more  than  the 
debtor's  right  to  exemption  from  what  is  beyond  an  honest  compensation  to  his 
creditor." 

*  See  the  doctnne    of    this    case    ajrain        t  22  Wendell.  210. 
adopted  bv  Mr.  Ch.  Walworth,  in  Shiel  v.        \  Hoas  v.  M'Ginnis,  25  Wend.   163,    per 
M'Mtt,  9  t'aige,  101.  Coweu,  J. 


476  LIQUIDATED    DAMAGES.  [CH.    X\^. 

The  subject  has  been  considered  by  the  Supreme  Court  of  the 
United  States*  A  written  contract  was  entered  into,  by  which 
the  defendants  in  error,  T.  &  S.  Sandiford,  agreed  to  build  for 
the  plaintiff  three  liouses  on  the  Pennsylvania  Avenue,  in  Wash- 
ington. A  subsequent  contract,  under  seal,  was  entered  into 
between  the  same  parties,  for  the  building  of  three  additional 
houses,  "the  same  to  be  completely  finished  on  or  before  the 
24th  day  of  December  next,  under  a  penalty  of  one  thousand  dol- 
lars, in  case  of  failure."  The  three  houses  were  not  finished  at 
the  day.  The  plaintiff  in  error  retained  the  sum  of  $1,000,  as 
stipulated  damages,  out  of  the  money  due  the  defendants  in 
error.     This  suit  was  brought ;   and  on  the  trial  the  plaintiff  in 

error  (the  defendant  below),  offered  to  set-off  the  $1,000 
[419]  as  stipulated  damages,  which  w^as  not  allowed ;  and  the 

Supreme  Court  held  the  charge  on  this  point  right,  though 
a  new  trial  was  ordered  on  other  grounds.  Marshall,  C.  J., 
said :  — 

"  In  general,  a  sum  of  money  in  gross  to  be  paid  for  the  non-performance  of 
an  agreement,  is  considered  as  a  penalty.  It  will  not  of  course  be  considered 
as  liquidated  damages.  Much  stronger  is  the  inference  in  favor  of  its  being  a 
penalty,  when  it  is  expressly  reserved  as  one.  The  parties  themselves  denomi- 
nate it  a  penalty,  and  it  would  require  very  strong  evidence  to  authorize  the  court 
to  say  that  their  own  words  do  not  express  their  own  intention."  f 

The  courts  of  the  various  States  seem  to  have  substantially 
adhered  to  the  rules  laid  down  in  the  courts  of  England  and 
New  York.t 

*  Tayloe  v.  Sandiford,  7  Wheaton,  13.  the  true  construction  of  the  agreement  was  to 

t  And  the  court  referred  to  Smith  v.  Dick-  be  deduced  from  all  the  circumstances  —  that 

inson,  3  Bos.  &  Pull.  630 ;    and  Fletcher  v.  the  adoption  of  the  form  of  a  bond  was  not 

Dyche,  2  T.  R.  32.  conclusive,  and  they  held  the  sum  named  to  be 

X  Lawrence  v.  Parker,  1  Mass.  191  ;  White  liquidated  damages.     Here  it  will  be  observed, 

V.  Dingley,  4  Mass.  433  ;  Upham  v.  Smith,  7  however,    that   the   undertaking   was'  in   the 

Mass.   26.5 ;   Pierce   v.  Fuller,   8  Mass.    223 ;  alternative. 

Perkins  v.  Lyman,  11  Mass.  76;  Merrill  v.  In  the  case  of  Shute  v.  Taylor,  5  Met.  61, 
Men-ill,  15  Mass.  488;  Stearns  v.  Barrett,  the  Supreme  Court  of  Massachusetts,  after 
1  Pick.  443 ;  Kellogg  v.  Curtis,  9  Pick,  stating  it  to  be  "  the  tendency  and  preference 
534;  Curtis  v.  Brewer,  17  Pick.  513.  For  of  the  law  to  regard  a  sum  stated  to  be  payable 
other  American  cases,  see  Dyer  v.  Dorsey,  if  a  contract  is  not  fulfilled,  as  a  penalty,  and 
1  Gill  &  3.  440  ;  Martin  v.  Taylor,  1  Wash.  C.  not  as  liquidated  damages,"  held  it  decisive 
C.  R.  1.  See  also,  Clark  v.  Jones,  1  Denio,  against  the  latter  construction,  that  in  the  case 
516.  before  them,  there  has  been  a  part  perform- 
In  Heard  v.  Bowers  (23  Pick.  435),  the  Su-  ance,  and  an  acceptance  of  such  part  perform- 
preme  Court  of  Massachusetts  reviewed  the  ance.  Vide  ante,  412,  note  [vi). 
cases  of  Astley  v.  Weldon,  2  Bos.  &  P.  346,  In  Alabama,  also,  similar  decisions  have 
and  Kemble  v.  Farren,  6  Bing.  141,  and  ad-  been  made.  Thus,  it  has  been  held  there  to 
hered  to  the  rule  as  there  settled.  be  correct,  as  a  general  rule,  that  the  obliga- 
The  case  of  Hodges  v.  King,  7  Metcalf,  583,  tion  to  pay  a  sum  of  money  which  may  be  dis- 
was  that  of  a  bond  with  a  penalty,  conditioned  charged  by  the  payment  of  a  lesser  sum  is  to 
to  procure  the  assignment  of  a  certain  bond  be  considered  as  a  penal  obligation,  and  that 
and  mortgage,  or  to  pay  a  given  sum  of  money,  the  lesser  sum  is  recoverable  only,  with  in- 
The  Supreme  Court  of  Massachusetts  said  that  terest.     But  where  the  payment  is  to  bo  made 


CII.    XVI.]  BONDS    TO    RESIGN   LIVINGS.  477 

The  term  "Penalty"  not  Invariably  Conclusive. — We 
have  seen  that  the  form  of  the  instrmnent  is  usually  con-  [420] 
elusive  where  the  term  jycnaUi/  is  employed ;  hut  this  is 
not  absolutely  universal ;  and  eveuj  bonds  are  sometimes  held 
obligatory  for  the  penalty  as  liquidated  damages.  Thus  the 
Supreme  Court  of  New  York*  held  a  ne-exeat  bond  conditioned, 
in  the  usual  form,  that  the  defendant  in  the  chancery  suit  should 
not  leave  the  State,  binding  for  the  full  amount  of  the  penalty, 
without  any  examination  into  the  real  loss  sustained  by  the 
plaintiff  But  this  was  on  the  ground  that  the  bond  was  given 
under  the  direction  of  the  Court  of  Chancery. 

Bonds  to  Resign  Livings. — It  has  been  held  otherwise  in  Eng- 
land, in  regard  to  bonds  to  resign  livings.  Debt  was  brought! 
on  a  bond,  the  condition  of  which  was  that  the  defendant  should 
resign  a  rectory  (to  which  he  had  been  presented  by  the  plain- 
tiff) when  either  of  two  persons  named  should  be  capable  of 
taking  it.  The  breach  alleged  was  a  refusal  to  resign.  The  net 
annual  value  of  the  living  was  .£700 ;  the  life  interest  of  the  de- 
fendant was  worth  ten  years'  purchase ;  and  the  life  interest  of 
one  of  the  persons  named  in  the  bond  was  worth  fourteen  years' 
purchase.  The  jury  found  a  verdict  for  the  latter,  and  larger 
amount.  The  solicitor-general,  on  behalf  of  the  defendant, 
moved  for  a  new  trial,  on  the  ground  that  the  value  of  the  de- 
fendant's life  interest  was  the  true  rule  of  damages ;  and  that 
the  gross  receipts  did  not  furnish  the  true  rule,  but  that  the 
yearly  stipend  to  the  curate  should  have  been  deducted.  But 
the  court  said,  "We  are  not  prepared  to  say  that  the  jury  in 
this  case  have  formed  a  wrong  estimate  of  the  damages  ;  for  the 
defendant,  having  entered  into  a  bond  to  do  a  particular  thing, 
which  he  has  refused  to  do,  is  a  ivrong-doer,  and  he  is  not  per- 
mitted to  estimate  the  value  of  the  living,  as  if  he  were  the 
purchaser  of  it."  We  have  already  had  occasion  to  considerl 
the  propriety  of  the  suggestion  here  made,  that  in  an  action  ex 
contractu,  the  motives  of  the  defendant  can  be  taken  into  con- 
sideration.! 

at  a  different  and  distant  place,  it  is  otherwise,  in  such  a  case,  they  should  express  the  sum  to 

Plummer  v.  M'Kean,  2  Stewart,  423.  be    paid    on    each    distinct    breach.     Watts' 

A  note  for  a  sum  certain  at  a  future  day,  Ex'rs  v.  Sheppard,  2  Ala.  425.      See  a  case 

which  may  be  discharged  by  the  p.ayment  of  a  in  Vermont,  Sawyer  v.  M'lutyre,  18  Verm. 

lesser  sum  any  earlier  day,  is  valid,  and  the  27. 

larger  sum  is  not  a  penalty.    Jordan  v.  Lewis,  *  Harris  v.  Hard}-*,  3  Hill,  393. 

2  Stewart,  426.  t  Lord  Sondes  v.  Fletcher,  5  Barn.  &  Aid. 

AVhere  articles  covenant  for  the  performance  835. 

of  several  tilings,  and  stipulate  for  the  i)ayment  |  Ante,  203,  et  seq. 

of  a  sum  in  gross  in  the  event  of  a  breach,  the  §  In  coming  to   this  conclusion,  however, 

sum  expressed  will  be  regarded  as  a  penalty  ;  the  court  seems  to  have  been  somewhat  influ- 

and  if  the  parties  would  stipulate  the  damages  enced   by  an  offer  made  by  the  plaintiff  to 


478  LIQUIDATED    DAMAGES.  [ciI.    XVI. 

[421]       On  a  review  of  the  cases,  the  following  principles  seem 
deducible  from  them,  as  those  which  are  to  govern  when- 
ever a  question  of  the   kind  considered  in  this  chapter  is  pre- 
sented: — ^ 

relinquish  all  claim  to  damages,  if  the  flcfend-  field  presiding.     Sec  remarks  on   the  suhjeet 

ant  would   resign   the   living ;    for   they  also  in  Lord  (Jampbell's  Life  of  Lord  Thurlow,  in 

said,  "  Besides,  it  appeared  at  the  trial   that  "  Lives   of  the   Chancellors,"  vol.  v.  p.  521  ; 

the  defendant  had  it  in  his  power  to  relieve  and  see  also,  Dwarris  on  Statutes,  ed.  of  1848. 

himself   from   this   verdict,  by  resigning   the  Errata  and  Addenda,  Ivi. 
living ;  and  if  he  does  not  do  that,  it  is  clear        But  again,  in  a  subsequent  case,  Legh  v. 

that  he  considers  the  damages  found  by  the  Lewis,  3  East,  398,  an  action  was  brought  on  a 

jury  as  less  than  the  value  of  the  living  to  bond  given  to  7-esifjn  the  mastership  of  a  school, 

him."     When  this  case  came  on  error  to  the  the  bond  was  held  good  at  law  ;  and  it  was 

House   of   Lords,  the   bond  was   held   to   be  said  that  the  decision  of  the  House  of  Lords, 

void.     Fletcher  u.  Sondes,  3  Bing.   591.     In  in  Fletcher  w.  Sondes,  turned  upon  the  ground 

the  previous   case   of  Bishop   of    London   v.  of  the  bond  in  that  case  being  simoniacal  and 

Ffytche,  1   East,  487,  the  validity  of  a  bond  against  the  statute,  and  not  as  contrary  to  the 

given  to  resign  a  living  came  in  question,  and  general  principles  of  the  common  law. 
was  sustained  by  all  the  judges,  Lord  Mans- 

^  The  question  whether  a  sum  named  in  a  contract  to  be  paid  for  a  breach  is  to  be  regarded 
as  a  penalt}''  or  as.  stipulated  damages,  has  been  much  discussed  since  the  last  edition  of  this 
work,  but  the  discussion  has  confirmed  rather  than  modified  the  author's  views.  The  law  per- 
mits the  ascertainment  of  such  damages  in  advance,  provided  no  other  legal  principle  is  vio- 
lated or  evaded,  as  for  instance  the  law  against  usury ;  and  in  considering  these  contracts, 
the  question  depends  not  so  much  on  their  form  or  language  as  on  their  subject-matter  and 
the  nature  of  the  covenant.     See  Chase  v.  Allen,  13  Gray,  42. 

In  the  i-ecent  English  ca.se  of  Betts  v.  Burch,  decided  by  the  Court  of  Exchequer  (4  H.  &  N. 
506),  the  plaintitf  agreed  to  sell  and  the  defendant  to  purchase  the  household  furniture,  fix- 
tures, and  stock  in  trade  in  or  upon  the  premises  at  the  King's  Head  by  valuation,  the  agreement 
providing  as  follows :  "  The  goods  to  be  valued  and  possession  given  on  or  before  October  1,3, 
1858,  and  in  the  event  of  either  of  the  parties  not  complying  in  every  particular"  with  "the 
agreement,  he  shall  forfeit  and  pay  the  sum  of  £50  and  all  expenses  attending  the  same." 
The  defendant  having  failed  to  take  possession,  the  plaintiflf"  some  months  after  sold  the  stock. 
The  del'endant  paid  £o  into  court,  and  the  jury  having  found  that  this  satisfied  the  plaintiff's 
actual  damages,  the  court  refused  leave  to  enter  the  verdict  for  £45,  Martin,  B.,  saying,  "  If  I 
were  not  embarrassed  by  the  cases  I  should  be  prepai-ed  to  hold  that  parties  are  at  liberty  to 
enter  into  any  bargain  they  please,  and  that  we  have  nothing  to  do  except  to  ascertain  their 
meaning  and  carry  it  out."  But  the  learned  judge  felt  himself  "  bound  by  the  cases,"  and 
declared  the  agreement  for  the  damages  a  penalty.  Bramwell,  Baron,  in  concurring,  placed 
his  decision  on  the  ground  that  the  agreement  was  ^Wthin  the  statute  8  and  9  William  III.  c 
11,  sec.  8,  considering  that  at  common  law  the  plaintitf  would  be  entitled  to  the  £50.  This 
statute  provided  that  no  more  than  the  actual  damages  should  be  recoverable  at  law  in  actions 
"  upon  any  bond  or  on  any  penal  sum  for  non-performance  of  any  covenant  or  agreement 
contained  in  any  indenture,  deed,  or  writing."     {Ante,  395.) 

But  in  the  late  case  of  Streeper  v.  Williams,  48  Penn.  State,  450,  which  arose  under  very 
similar  circumstances,  the  Supreme  Court  of  Pennsylvania  arrived  at  an  opposite  conclusion. 
In  that  case  the  owner  of  a  hotel  had  agreed  to  sell  it  for  $14,000,  of  which  $3,000  were  to  be 
paid  on  a  specified  day,  when  the  deed  was  to  be  signed.  Possession  of  the  bar-room  was  to 
be  given  immediately.  The  parties  mutually  agreed  to  forfeit  $500  in  case  of  failure  to  keep 
the  agreement.  The  $500  was  held  to  be  liquidated  damages  and  not  a  penalty.  The  court, 
per  Agnew,  J.,  in  reference  to  the  question  under  consideration,  say  :  "  Upon  no  question  have 
courts  doubted  or  differed  more.  It  is  unnecessary  to  examine  the  numerous  authorities  in 
detail,  for  they  are  neither  uniform  nor  consistent.  No  definite  rule  to  determine  the  question 
is  furnished  by  them,  each  being  determined  more  in  reference  to  its  own  facts  than  to  any 
general  rule.  In  the  earlier  cases  the  courts  gave  more  weight  to  the  language  of  the  clause 
designating  the  sum  as  a  penalty  or  as  liquidated  damages.  The  modern  authorities  attach 
greater  importance  to  the  meaning  and  intention  of  the  parties;  yet  the  intention  is  not  all- 
controlling,  for  in  some  cases  the  subject-matter  and  surroundings  of  the  contract  will  control 
the  intention  where  equity  absolutely  demands  it.  A  sum  expressly  stipulated  as  liquidated 
damages  will  be  relieved  from,  if  it  is  obviously  to  secure  the  payment  of  another  sum  capable 
of  being  compensated  by  interest.  On  the  other  hand,  a  sum  denominated  a  penalty  or  for- 
feiture will  be  considered  liquidated  damages  whei'e  it  is  fixed  upon  by  the  parties  as  the 
measure  of  the  damages,  because  the  nature  of  the  case,  the  uncertainty  of  the  proof,  or  the 
diflSculty  of  reaching  the  damages  by  proof,  have  induced  them  in  some  cases   to  make  the 


CH.  XVI.]  gem:ral  rules.  479 

First.  That  the  laiigiiage  of  the  agreement  is  not  conclusive, 
and  that  the  eflbrt  of  tlie  tribunal  will   be  to   get  at  the   true 

damages  a  sulycct  of  previous  adjiistniL-nt.  In  sonic  cases,  the  magnitude  of  the  .sum,  and  its 
proportion  to  the  proI)al»Ic  (•onsi.'(|ui'nce  of  a  l)reaoh,,will  cause  it  to  l>e  looked  ujjon  as  mina- 
tory only.  Upon  the  wliole,  the  only  general  observation  we  can  make  is,  that  in  each  case  we 
must  look  at  the  language  of  the  contract,  the  intention  of  the  parties  as  gathered  from  all  its 
provisions,  the  subject  of  the  contract  and  its  surroundings  —  the  ease  or  ditticnlty  of  measur- 
ing the  breach  in  damages  and  the  sum  stipulated  —  and  from  the  whole  gather  the  view 
which  good  conscience  and  equity  ought  to  take  of  the  ease.  Ivpiity  lies  at  the  foundation  of 
relief  in  the  case  of  forfeiture  and  penalties,  and  hence  the  difticulty  of  reaching  any  general 
rule  to  govern  all  cases."  He  relers  to  the  following  authorities  in  addition  to  those  here 
cited :  Chamberlain  u.  Baglev,  11  N.  II.  :2.34  ;  Gammon  v.  Howe,  2  Sliep.  (14  Me.)  250  ;  Mead 
V.  Wheeler,  1.3  N.  II.  351  ;  Maine  v.  King,  10  Barl).  N.  Y.  59. 

In  the  case  of  Bagley  v.  I'eddie  (5  8andf.  192,  and  16  N.  Y.  469)  the  subject  was  very 
thoroughly  discussed  both  by  the  court  below  and  on  appeal.  The  defendant  in  that  case  had 
entered  into  sealed  articles  of  agreement  with  the  jilaintiff,  by  which  he  covenanted  to  abide 
with  the  plaintiti'  four  years,  and  serve  him  during  tliat  time  according  to  his  best  ability,  keep 
the  secrets  of  the  business,  not  misappropriate  any  money  or  property  of  the  plaintiff,  keep 
just  accounts  of  the  business,  and  rentier  such  accounts  when  required. 

The  Superior  Court,  in  their  opinion,  stated  the  following  tests  for  distinguishing  between 
liquidated  damages  and  a  penalty  :  — 

1 .  W^here  it  is  doubtful,  on  the  face  of  the  instrument,  whether  the  sum  mentioned  was 
intended  to  be  stipulated  damages  or  a  penalty  to  cover  actual  damages,  the  courts  hold  it  to 
be  the  latter.     See  in  support  of  this  canon,  Bearden  v.  Smith,  11  S.  C.  Law  R.  534. 

2.  On  the  contrary,  where  the  language  used  is  clear  and  explicit  to  that  etlii'ct,  tlie  amount 
is  to  be  deemed  litpiidated  damages,  however  extravagant  it  may  appear,  unless  the  instrument 
be  qualified  by  some  of  the  circumstances  hereinafter  mentioned. 

3.  If  the  instrument  provide  that  a  larger  sum  shall  be  paid  on  the  failure  of  the  party  to 
pay  a  less  sum  in  the  manner  prescribed,  the  larger  sum  is  a  penalty  whatever  may  be  the 
language  used. 

4.  When  the  covenant  is  for  the  performance  of  a  single  act  or  several  acts,  or  for  the 
abstaining  from  doing  some  particular  act  or  acts  which  are  not  measurable  by  any  exact 
pecuniary  standard,  and  it  is  agreed  that  the  party  covenanting  shall  pay  a  stipulated  sum  as 
damages  for  a  violation  of  any  of  such  covenants,  that  sum  is  to  be  deemed  liquidated  dam- 
ages and  not  a  penalty.  [In  accordance  with  this  canon  are  the  following  cases :  Chase  v. 
Allen,  13  Gray,  42  ;  Lvnde  v.  Thompson,  2  Allen,  456  ;  Hall  i'.  Crowley,  5  Allen,  304;  Ting- 
ley  t'.  Cutler,  7  Conn.  291  ;  Brinkerhoff  v.  Olp,  35  Barb.  (N.  Y.)  27.] 

5.  Where  the  agreement  secures  the  performance  or  omission  of  various  acts  of  the  kind 
mentioned  in  the  last  proposition,  together  with  one  or  more  acts  in  respect  of  which  the  dam- 
ages on  a  breach  of  the  covenant  are  certain  or  readily  ascertainable  by  a  jury,  and  there  is  a 
sum  stipulated  as  damages  to  be  paid  by  each  party  to  the  other  for  a  breach  of  any  one  of  the 
covenants,  such  sura  is  held  to  be  a  penalty  merely.  [See  the  cases  cited  in  note  1,  p.  408. 
Those  of  Durst  v.  Swift,  11  Tex.  273  ;  Williams  v.  Green,  14  Barb.  (Ark.)  315  ;  Reynolds  v. 
Bridge,  6  Ellis  &  B.  528,  and  Bridges  v.  Hyatt,  2  Abb.  (N.  Y.)  Pr.  R.  449,  also  accord  with 
this  canon.] 

But  the  court  below  considered  that  two  of  the  covenants  in  the  agreement,  one  against 
•wrongfully  detaining  the  plaintiff's  moneys  or  property',  and  one  requiring  the  defendant  to 
give  a  true  account  of  the  things  committed  to  his  management,  were  clearly  certain  in  their 
nature,  and  that  damages  for  their  breach  might  be  readily  ascertained  by  a  jury.  They  held, 
therefore,  that  the  sum  payable  by  the  agreement  was  a  penalty.  Without  apparently  dissent- 
ing from  the  principles  relied  on  l)y  the  Superior  Court,  the  Court  of  Appeals  did  not  consider 
these  covenants  as  having  the  certainty  necessary  to  avoid  the  stipulation  liquidating  the  dam- 
ages, but  held  that  the  damages  to  result  from  a  breach  of  any  of  the  covenants  were  "  uncer- 
tain and  conjectural,"  and  therefore,  maintaining  the  stipulation  as  to  the  damages,  reversed  the 
decision  because  of  the  erroneous  application  of  a  sound  principle. 

The  Appellate  Court,  in  their  ojjinion  in  this  case,  say  that  certain  artificial  rules  of  con- 
struction of  these  contracts  have  been  the  result  of  the  reluctance  of  the  courts  to  enforce  them 
against  the  plain  language  of  the  parties.  Seven  of  these  rules  are  enumei'ated  by  the  learned 
court,  of  which  the  first  six,  with  some  difference  of  arrangement  and  phraseology,  are  substan- 
tially included  in  the  five  canons  of  the  text,  and  therefore  need  not  be  repeated.  The  seventh 
is  as  follows  :  "  If  the  language  of  the  parties  evince  a  clear  and  undoubted  intention  to  fix  the 
sum  mentioned  as  liquidated  damages  in  case  of  a  default  of  performance  of  some  act  aureed 
to  be  done,  then  the  court  will  enforce  the  contract  if  legal  in  other  respects."  This  conforms 
with  the  English  doctrine,  and  with  the  author's  opinion  as  stated  in  relation  with  the  first 
canon  of  the  text.  The  rules  collated  by  the  Ap])ellate  Court  in  this  case  are  generally  recog- 
nized as  correct.     See  Basye  v.  Ambrose,  28  Mo.  (7  Jones)  39.     And  we  think  that  the  "  un- 


480  LIQUIDATED    DAMAGES.  [CH.    XVI. 

intent  of  the  parties,  and  to  do  justice  between  them.^  In  Eng- 
land there  seems  to  be  a  readier  disposition  to  uphohl  the  Uqui- 
dation  of  tlie  damages  than  in  this  country ;  and  I  cannot  but  ex- 
press my  opinion  that  the  courts  of  the  United  States  have  shown 
an  unwise  rekictance  to  admit  the  agreement  as  conchisive  on 
this  point.  If  the  purpose  is  clear,  there  seems  no  reason  to 
hesitate  in  giving  it  full  effect. 

Second.  That  wdien  the  agreement  is  in  the  alternative  to  do 
some  particular  thing  or  pay  a  given  sum  of  money,  the  court 
will  hold  the  party  failing  to  have  had  his  election,  and  compel 
him  to  pay  the  money.^ 

Third.  That  in  case  of  an  agreement  to  do  some  act,  and  upon 
failure  to  pay  a  sum  of  money,  the  court  will  look  into  the  in- 
tent of  the  parties ;  that  no  particular  phraseology  will  be  held 
to  govern  absolutely ;  but  that  although  the  term  "  liquidated 
damages"  will  not  be  conclusive,  the  phrase  "penalty"  is  gen- 
erally so,  unless  controlled  by  some  other  very  strong  considera- 
tion.^ 

Fourth.  That  if  the  sum  be  evidently  fixed  to  evade  the 
usury  laws  or  any  other  statutory  provision,  or  to  cloak  oppres- 
sion, the  courts  will  relieve  by  treating  it  as  a  penalty.*  Conse- 
quently, whenever  the  sum  stipulated  is  to  be  paid  on  the  non- 
payment of  a  less  sum  made  payable  by  the  same  instrument, 
it  will  always  be  held  a  penalty.  ^ 


wise  reluctance"  to  give  effect  to  an  agi-eement  fairly  liquidating  the  damages,  observed  by  the 
author  in  the  earlier  American  decisions,  has  been  since  overcome. 

1  Foley  V.  McKeegan,  4  Iowa,  1 ;  Davis  v.  Freeman,  10  Mich.  188;  Bearden  v.  Smith,  11 
S.  C.  Law  R.  (Rich.)  .554;  Hosmer  v.  True,  19  Barb.  (N.  Y.)  106 ;  Low  v.  Nolte,  16  111.  475  ; 
Durst  V.  Swift,  11  Tex.  273.  But  where  there  is  a  reasonable  doubt  as  to  the  intent,  it  is  to 
be  construed  as  a  penalty.     Smith  v.  Wainwright,  24  Vt.  97  ;  Low  v.  Nolte,  16  111.  475. 

2  But  see  Burrage  v.  Crump,  3  Jones  (N.  C.)  L.  330. 

s  Higginson  v.  Weld,  14  Gray  (Mass.),  165  ;  Richards  y.Edick,  17  Barb.  (N.  Y.)  260 ;  Leg- 
gett  V.  Mutual  Life  Insurance  Company  of  New  York,  50  Barb.  616  ;  Powell  v.  Burroughs,  54 
Penn.  St.  329  ;  Smith  v.  Wainwright,  24  V*  97.  In  case  the  agreement  assumes  the  form  of 
a  bond,  or  the  sum  reserved  is  denominated  a  penalty,  the  prima  facie  presumption  is  that  the 
larger  sum  is  intended  merely  as  security  and  not  as  li()ui(latcd  damages.  On  the  contrary,  if 
the  sum  specified  be  declared  atfirmatively  to  be  liquidated  damages,  and  negatively  also,  that 
it  should  not  be  considered  as  a  penalty  or  in  the  nature  of  a  penalty,  although  the  inference 
is  that  the  parties  meant  what  they  expressed,  yet  there  are  certain  rules  of  law  which  may 
control  the  meaning  and  convert  the  sum  so  mentioned  into  a  penalty.  Esmond  v.  Van  Ben- 
schoten,  12  Barb.  (N.  Y.)  366.  See  Burr  v.  Todd,  41  Penn.  206  {ante,  412,  note) ;  Robeson 
V.  Whitcsides,  16  S.  &  R.  320;  Robinson  i'.  Blackwell,  25  Penn.  424  (ante,  413,  note).  See 
Ricketson  v.  Richardson,  19  Cal.  380  {ante,  396,  note). 

Where  the  provision  for  the  payment  of  a  fixed  sum  on  the  breach  of  an  agreement  is  found 
in  the  condition  of  a  penal  bond,  the  presumj^tion  is  that  the  sum  named  in  the  condition  was 
not  designed  as  a  penalty.     Cotheal  v.  Talmage,  5  Seld..  (N.  Y.)  551. 

*  And  where  the  contract  is  such  that  it  can  be  separated  as  to  performance  so  as  to  acTmit  of 
an  assessment  of  damages  for  a  breach  of  one  part  and  not  of  the  other,  a  party  should  not  for 
a  trifling  omission  be  made  responsible  for  the  whole  amount  of  damages  specified.  Colwell  v. 
Lawrence,  38  Barb.  643;  Fitzpatrick  v.  Cottingham,  14  Wis.  219. 

5  Beale  v.  Hayes,  5  Sandf  (N.  Y.)  640;  Tiernan  v.  Hinman,  16  111.  400;  Haldemau  v.  Jen- 
nings, 14  Ark.  (1  Barb.)  329. 


CH.    XVI.]  GExNEllAL    RULES.  481 

Ftflh.  That  where  independently  of  the  stipukition  the 
diuiiagcs  would  be  Avholly  uncertain,  and  incapable  or  [422] 
very  difficult  of  being  ascertained  except  b}^  mere  con- 
jecture, there  the  damages  will  be  usually  considered  liquidated, 
if  the}^  are  so  denominated  in  the  instrument.*  ^ 

The  consequences  resulting  from  the  construction  of  agree- 
ments in  this  point  of  view,  are  complex  and  curious.  On  one 
hand,  it  may  be  in  many  cases  desirable  to  get  rid  of  the  stipu- 
lated damages,  and  to  require  an  examination  into  the  real  loss 
sustained.  But,  on  the  other,  a  specific  performance  may  be 
desirable ;  and  this  cannot  Ije  had  if  the  damages  are  to  be  con- 
sidered as  liquidated,  the  parties  having  in  that  case  provided 
their  own  redress.  Equity  will  only  interfere  where  the  sum  is 
clearly  meant  as  a  penalty.  Sof  where  articles  were  executed 
for  the  purchase  of  an  estate,  with  a  provision  that  if  either 
should  break  the  agreement,  he  should  pay  £100,  Lord  Hard- 
wicke  treated  this  as  a  mere  penalty,  and  decreed  a  s^DCcific  per- 
formance, t 

Another  consequence  flowing  from  the  distinction  between 
stipulated  damages  and  a  j)enalty,  under  the  original  English 
law  of  arrest,  was,  that?  for  the  Ibrmer  the  defendant  might  be 
held  to  bail,  but  not  for  the  latter;  and  therefore  an  affidavit  to 
hold  to  bail  which  did  not  show  what  the  agreement  was,  nor 
in  what  respects  it  was  broken,  but  merely  alleged  an  obligation 
to  pay  £50  in  case  of  non-performance,  and  charged  such  non- 
performance, was  held  insufficient,  and  the  defendant  was  re- 
leased from  custody.§ 

The  French  Code,  like  our  law,  enables  the  parties  to  liqui- 
date the  damages  for  the  non-performance  of  the  contract ;  and 
the  tribunal  cannot  depart  from  the  sum  thus  fixed.jj 

*Tn  addition  to  this  summary,  we  may  call  %  But,  on  the  other  hand,  where  defendant 
the  attention  of  the  reader  to  the  comments  on  had  underlet  a  church  lease  to  the  complain- 
the  cases  contained  in  Evans'  Pothier  on  Obli-  ant,  with  a  covenant  to  renew  under  a  penalty 
gations,  Appendix,  No.  12,  vol.  ii.  6,5 ;  in  the  of  £10,  it  was  held  in  the  Irish  Exchequer, 
note  to  Barton  v.  Glover,  Holt  X.  P.  R.  43  ;  and  on  appeal  by  the  House  of  Lords,  that 
and  the  note  to  Spencer  v.  Tilden,  5  Cowen,  this  was  not  a  covenant  to  renew,  but  that  the 
144,  150.  The  court  will  not  set  aside  or  refer  part}"  was  at  liberty  to  renew  or  pay  the  pen- 
back  an  award  for  an  objection  in  point  of  law,  alty.  L'nless  the  agreement  was  in  the  alter- 
not  apparent  on  the  face  of  it ;  as  upon  a  su<:ges-  native,  the  decision  may  perhaps  be  questioned. 
tiou  that  the  arbitrator  improperly  treated  as  Magrane  v.  Arehbold,  1  Dow,  107. 
a  penalty  that  which  by  the  express  contract  §  Wildey  v.  Thornton,  2  East,  409 ;  Ed- 
of  the  ])artieswas  stij)ulatcd  (laniaf;es.  Fuller  wards  v.  Williams,  5  Tainit.  247. 
V.  Fenwick,  3  Man.  Gr.  &  Scott,  7u5.  ||  Lorsque  la  convention  porte  que  celui  qui 

t  Howard  w.  Hopkins,  2  Atkyns,  371.  manquera   de   I'exe'cuter   paiera   imc  certaine 

1  Peo]ile  V.  Love,  19  Cal.  676  ;  Fisk  v.  Fowler,  10  Cal.  512  ;  Cal.  Steam  Nav.  Co.  v.  Wright, 
6  Cal.  252:  Williams  v.  Dakin,  22  Wend.  201;  Ryan  v.  Martin,  16  Wis.  57;  Pierce  v. 
Jung-,  10  Wis.  30;  Holmes  v.  Holmes,  12  Barb.  (N."Y.)  137;  Esmond  v.  Van  Benschoten, 
Ibid.  366  ;  Mundy  v.  Culver,  18  Ibid.  336  ;  Williams  v.  Green,  14  Barb.  (Ark.)  315  ;  Lange  v. 
Werk,  2  Ohio  St.  519  ;  Dwinel  i-.  Brown,  54  Me.  468;  and  see  Hussev  v.  Roquemore,  27  Ala. 
281  ;  Rcvnoids  v.  Bridge,  6  Ellis  &  B.  528. 
31 


4S2 


LIQUIDATED    DAMAGES. 


[CH. 


XVI. 


Damages  Beyond  Penalty.  —  We  have  thus  far  seen  that  in 
the  actions  both  of  debt  and  covenant,  if  the  damages  are 
[423]  not  fixed  the  plaintifl'  is  Hniited  to  the  recovery  of  com- 
pensation for  his  real  loss ;  and  that  for  the  purpose  of 
obtaining  these,  he  is  obliged  to  assign  breaches,  thus  destroy- 
ino"  even  the  pnnid  facie  force  of  the  penalty  ;  and  we  have  also 
considered  the  cases  in  which  the  sum  named  in  the  contract  is 
treated  either  as  a  penalty  or  as  liquidated  damages.  We  have 
now  to  examine  the  further  question,  whether  in  contracts 
secured  by  a  penalty,  the  plaintiff  can  recover  for  damages  ac- 
tually sustained  beyond  the  penalty.* 

Recovery  of  Penalty   ends  the  Claim.  —  Where   there   is   a 


somnic,  a  titre  de  dommages  intcrets,  il  no 
pcut  etre  alloue  al'autre  partie  unc  somnie 
plus  forte  ni  moindre.     Code  Civil,  §  1152. 

The  commissioners  charged  with  preparing 
the  codes,  proposed  to  retain  the  former  juris- 
prudence in  this  respect,  which  permitted  the 
judge  to  moderate  the  penalty  in  behalf  of  the 
debtor,  if  it  evidently  exceeded  the  damage 
sustained,  but  gave  him  no  power  to  augment 
it  in  tavor  of  the  creditor,  although  it  might 
be  far  short  of  the  injury  suft'ered.  These 
views  were,  however,  overruled.  Toullier,  vol. 
vi.  812;  des  Obligations,  ou  Clauses  Penales ; 
see  Domat,  part  i.  book  3,  tit.  v.  sec.  2,  §  15. 

*  The  cases  bearing  on  this  subject  are  the 
following,  in  England  :  Love  v.  Peers,  4  Burr. 
2225,  which  was  covenant  on  a  sealed  contract 
not  to  marr}' ;  Winter  v.  Trimmer,  1  W.  Bl. 
Eep.  395;  Bird  v.  Randall,  1  W.  Bl.  Rep. 
373  and  387  ;  3  Burr.  1345 ;  Braiigwiu  v. 
Perrot,  2  W.  Bl.  Rep.  1190,  on  an  indenmity 
bond  against  the  maintenance  of  a  bastard ; 
Knight  V.  Maclean,  3  Br.  Ch.  E.  496 ;  Tew 
J).  Earl  of  Winterton,  3  Br.  Ch.  R.  490; 
White  V.  Sealey,  Doug.  49,  on  a  bond  con- 
ditioned for  the  payment  of  rent ;  Lonsdale  o. 
Church,  2  T.  R.  "'388,  overruled  by  Wilde  v. 
Clarkson,  6  T.  R.  303,  and  M'Clure  v.  Dun- 
kin,  1  East,  436;  Harrison  d.  Wright,  13  East, 
342;  Hetford  y.  Alger,  1  Taunt.  218;  Evans 
V.  Brander,  2  H.  B.  547  ;  Paul  v.  Goodluck,  2 
Bing.  N.  C.  220 ;  Hellen  v.  Ardley,  3  Car.  & 
Payne,  12 ;  and  also  the  cases  collected  in  a 
note  thereto,  20  Law  J.  187.  In  Hellen  v. 
Ardley,  it  was  held  at  Nisi  Prius,  that  in  debt 
on  boiid  for  payment  of  money  with  interest, 
the  ])laintiff  could  only  recover  to  the  amount 
of  the  penalty,  with  one  shilling  for  detention 
of  the  debt.  "  Buller's  N.  P.  178;  1  Chitty's 
Pleadings,  371.  And  in  America,  Tunison  v. 
Cramer,  South.  R.  498  ;  Graham  v.  Bickham, 
4  Dall.  149  ;  S.  C.  2  Yeates'  R.  32 ;  Harris 
V.  Clap,  1  Mass.  R.  308  ;  Payne  v.  EU/.ey,  2 
Wash.  R.  143;  United  States  v.  Arnold,  1 
Gall.  R.  348,  3G0 ;  S.  C.  9  Cranch,  104; 
Perkins  v.  Lyman,  11  Mass.  76;  Smedes  u. 
Ilooghtaling,  3  Caines,  48 ;  Fairlie  v.  Lawson, 


5  Cowcn,  424;  Clark  v.  Bush,  3  Cowen,  151 ; 
Cook  V.  Tousey,  3  Wend.  444.  In  Bank  of 
the  United  States  v.  Magill,  Paine's  C.  C.  R. 
661,  669,  in  an  action  of  debt  on  bond  in  the 
penalty  of  $50,000  given  by  Magill  and  two 
■  sureties,  conditioned  for  the  faithful  discharge 
of  Magill's  duties  as  cashier,  Thompson  J., 
said,  "  I  am  inclined  to  adopt  as  the  better 
opinion,  that  where  a  bond  with  a  penalty  is 
given  for  the  performance  of  covenants,  al- 
though damages  may  have  been  sustained  to  a 
greater  amount,  yet  the  recovery  must  be 
limited  to  the  penalty.  I  the  more  readily 
adopt  this  rule  in  the  present  instance,  because 
it  is  a  case  of  sureties.  In  such  cases,  it  is 
peculiarly  lit  and  proper  that  they  should  not 
be  made  liable  for  damages  beyond  the  pen- 
alty. If  the  responsibility  zvas  without  limitation, 
prudent  and  discreet  men  would  be  unwilling  to 
become  secui'it}-  and  expose  themselves  to  such 
hazard.  No  jiulgment  could  be  formed  as  to 
the  extent  of  the  risk,  nor  any  calcxilation 
made  as  to  the  indemnity,  or  counter-security 
necessary  for  their  protection.  I  do  not  mean 
to  be  understood  as  extending  this  rule  to 
bonds  where  the  condition  is  for  the  paraient  of 
money  only.  Such  cases  might,  probably,  re- 
quire the  application  of  a  different  rule,  and 
depend  on  dilierent  principles."  In  the  IJnit- 
ed  States  v.  Arnold,  1  Gallison,  348,  Story, 
J.,  said,  "  Notwithstanding  some  contrariety 
in  the  books,  I  think  the  true  principle,  sup- 
ported by  the  better  authorities,  is  that  the 
court  cannot  go  beyond  the  penalty  and  inter- 
est thereon  from  the  time  it  becomes  due  by 
the  breach." 

In  a  case  in  the  Queen's  Bench  it  was  said, 
that  a  replevin  bond  is  no  exception  to  the 
general  rule,  that  on  a  bond  the  jilaintitf  can- 
not recover  beyond  the  penalty  and  costs  of 
suit.  Branscombe  i'.  Scarborough,  6  Q.  B. 
13.  In  a  recent  case  in  Pennsylvania,  the 
subject  was  examined,  and  it  was  held  that  a 
surety  in  a  replevin  bond  is  not  liable  beyond 
the  penalty.  Balsley  v.  Hotfmann  et  al.  13 
Penn.  State,  603. 


CH.   XVI.]  STIPULATION    FOR   DAMAGES   DISREGARDED.  483 

contract  to  do  a  specific  act,  secured  by  a  penalty,  if  the 
penalty  is  not  regarded  as  liquidated  damages,  the  party  [424] 
may  either  demand  the  penalty  or  bring  action  on  the 
covenant,  and  in  such  case  recover  beyond  the  penalty.     But  if 
this  be  not  done,  and  if  the  penalty  is  recovered,  it  puts  an  end 
to  all  claim  for  breach  of  contract;  and  whether  the  penalty  be 
paid  before  or  after  the  commencement  of  a  suit  for  the  breach 
of  the  contract,  makes  no  difference;  and  so  said  Lord  Mansfield, 
in  Love  v.  Peers :  "  There  is  a  difference  between  covenants  in 
general,  and  covenants  secured  by  a  penalty  or  forfeiture.    Li  the 
latter  case,  the  obligee  has  his  election  :  he  may  either  bring  an 
action  of  debt  and  recover  the  penalty,  after  which  recovery  of 
the  penalty  he  cannot  resort  to  the  covenant ;  or  if  he  does  not 
choose  to  go  for  the  penalty,  he  can  proceed  upon  the  covenant, 
and  recover  more  or  less  than  the  penalty,  ioiies  quoiics."*^ 

The   Pl.aintiff  may   Disregard  the   Stipulation  for  Damages 

unless  they  are  to  be  absolutely  in  lleu  of  performance. 

The  same  principle,  that  unless  the  stipulated  damages  are  to 
be  absolutely  in  lieu  of  performance,^  the  plaintiff  may  disre- 
gard them  and  sue  for  the  actual  damages  sustained,  was  laid 
down  in  Pennsylvania,!  where  the  defendant  had  agreed  to  pay 
$22,318.49  for  certain  stock,  and  bound  himself  for  the  per- 
formance of  the  agreement  in  the  sum  of  $1,000:  here  it  was 
held  that  this  was  not  stipulated  damages,  but  a  penalty  merely ; 
and  the  plaintiff  recovered  £1,798  17^.  6^.  "The  plaintiff,"  said 
the  court,  "  is  entitled,  notwithstanding  the  penalty,  to  recover 
damages  commensurate  with  the  injury  suffered  by  a  non-perfor- 
mance." So  again  in  New  York,  in  a  case  on  a  building  agree- 
ment, it  was  said,  "  As  the  articles  contained  a  penalty  and  an 
express  covenant  by  the  defendant  to  pay  the  instalment  for 

*  4  Burr.  2225.  See  also,  Bird  y.  Randall,  1     1   W.  Black.  395;    Harrison   v.    Wright,   13 
MV.  Black.  373  and  387  ;  Winter  v.  Trimmer,     East,  342. 

t  Graham  v.  Bickham,  4  Dall.  149. 


1  Tlie  lessor  for  rears  of  a  part  of  a  steam-mill  having  covenanted  with  the  lessee  to  furnish 
him  with  a  certain'amount  of  steam  power  during  every  M-orking  day  in  the  year,  and  that  if 
at  anv  time  he  should  fail  to  do  so,  the  rent  should  cease  during  the  time  of  such  failure;  it 
was  lield  that  the  suspension  of  the  rent  was  not  a  liquidation  of  the  lessee's  damages  for  a 
breach  of  the  lessor's  covenant  to  furnish  steam  power.  Fisher  v.  Barratt,  4  Cush.  (Mass.)  R. 
381. 

Where  an  undertaking  to  perfomi  certain  work  was  entered  into,  with  a  stipulation  that  the 
undertaking  might  be  discharged  bv  the  pavment  of  S75  before  a  certain  date  previous  to  the 
stipulated  time  for  performing  the  work,  it  was  held  that  the  $75  was  not  liquidated  damages, 
and  that  the  measure  of  damages,  on  breach  of  the  contract,  was  the  value  of  the  work  at  the 
time  it  should  have  been  performed.     Wilson  v.  Graham,  14  Tex.  222. 

2  See  Richards  v.  Edick,  17  Barb.  (N.  Y.)  2G0. 


4S4  LIQUIDATED    DAMAGES.  [CH.    XVI. 

which  the  action  was  brought,  the  plaintiffs  could  at  their  elec- 
tion, sue  for  either."  * 

Distinction  between  Covenant  Secured  by  Penalty  and  Bond. 
—  There  is  a  clear  distinction  between  a  covenant  in  which  the 
party,  affirmatively  stipulating  to  do  or  to  refrain  from 
[425]  doing  some  particular  act,  proceeds  to  secure  his  agree- 
ment by  a  penalty,!  and  the  common  bond,  which 
merely  stipulates  for  the  payment  of  a  sum  of  money,  and 
makes  its  payment  depend  on  a  condition ;  for  the  performance 
of  that  condition  there  is  no  promise,  unless  one  can  be  implied 
from  the  joint  effect  of  the  condition  and  penalty.  And  hence 
results  the  inquiry,  whether  in  the  action  of  debt  on  bond  the 
damages  can  be  carried  beyond  the  penalty.^ 

The  question  has  been  much  agitated  as  to  damages  in  gross, 
and  also  as  to  interest,  and  both  as  against  a  principal  and 
against  a  surety.  The  American  rule  to  be  deduced  from  all 
the  cases  seems  to  be,  that  against  a  surety  in  debt  on  bond,  noth- 
ing shall  be  recovered  beyond  the  penalty  ;  t  that  against  the 
principal  in  that  form  of  action,  interest  may  be  recovered  be- 
yond the  penalty.  While  in  England  the  penalty  appears  in 
all  cases,  except  perhaps  in  equity,  to  be  the  absolute  limit. 
But  in  neither  country  can  damages  in  gross  be  recovered, 
ao-ainst  either  principal  or  surety,  beyond  the  penalty.^ 

*  Hagyart  v.  Morgan,  1  Seld.  432.  Sliipping,  part  iv.  cli.   ii.  of  the  ship-owner's 

t  So  Lord  C.  J.  Tenterden,  in  his  treatise  lien  for  profits,  etc. 
on  Shipping,  assumes  that  .as  to  charter-par-         J  Chark  v.  Bush,  3  Cowen,  151  ;  Rayner  v. 

ties,  damages  may  be  recovered   beyond  tlie  CUxrk,  7  Barb.  S.  C.  R.  581. 
amount  of  the  penalty  and  costs.     Aljliott  on 

1  SeeByrdr.  The  State,  15  (Ark.)  Barb.  175;  Trice  v.  Turrentine,  13  Ired.  (N.  C.)  L. 
212. 

-  Fi-aser  v.  Little,  13  Mich.  195.  But  although  so  far  as  interest  is  payable  by  the  contract, 
it  is  limited  by  the  penalty,  yet  after  the  default  of  a  surety  in  a  bond  for  the  payment  of 
money,  interest  from  the  time  of  the  breach  may  be  recovered  as  damages,  although  tlie  amount 
paid  by  the  surety  is  thereby  made  to  exceed  the  penalty  of  the  bond.  Brainard  v.  Jones,  18 
N.  Y.  35.  On  the  same  principle,  where-  the  stockholders  of  a  corporation  are  by  statute  scv- 
erallv  individually  liable  to  the  creditors  of  the  company  in  which  they  are  stockholders  to  an 
amount  eiinal  to  the  amount  of  stock  held  by  them  respectively,  this  liability,  fi-om  the  time  of 
the  commencement  of  a  suit  for  a  debt  exceeding  the  principal  of  the  defendant's  stock, 
brou"ht  to  enforce  it,  is  fixed  for  the  specific  sum  ecpial  to  the  amount  of  the  stock,  and  the 
debt  carries  interest,  althougli  the  amount  of  the  creditor's  recovery  thereby  exceeds  the  stock- 
holder's original  liability.     Burr  v.  Wilcox,  22  N.  Y.  551. 

In  an  action  on  a  bond,  in  wliich  the  obligor  bound  himself  to  procure  the  conveyance  of  a 
tract  of  land  to  the  obligee  in  a  penalty  less  than  tlie  value  of  the  land,  the  Supreme  Court  of 
Iowa  set  aside  a  verdict  for  the  value,  saying  that  in  the  absence  of  bad  faith,  fcaud,  or  will- 
fully culpable  neglect  of  the  defendant,  a  recovery  beyond  the  penalty  of  the  bond  ought  not 
to  be  had.     Sweem  v.  Steele,  10  Iowa,  374. 

Where  a  railroad  company  executed  a  bond  to  nine  persons,  according  to  their  relative  and 
respective  several  interests,  in  the  penal  sum  of  S3,000  as  follows :  "  On  this  express  condition 
that  the  said  railroad  company  shall,  on  the  assessment  of  damages  to  be  made  to  secure  the 
richt  of  way  for  said  railroad,  pay  to  the  obligees  relatively  and  respectively,  damages  which 
may  be  assessed  as  aforesaid,  then  this  bond  to  he  void,"  which  was  a  several  instrument,  on 


CH.  XVI.]  DAMAGES    BEYOND    PENALTY.  485 

If,  on  the  other  hand,  the  action  of  covenant  be  brought  on  an 
absolute  antl  not  a  conditional  undertaking,  then  the  penalty  is 
merely  a  security,  and  the  party,  whether  principal  or  surety, 
may  be  sued  as  often  as  damage  is  sustained.  But  the  question 
what  is  an  absolute  and  what  a  conditional  undertaking,  still 
remains.  Does  an  ordinary  bond  imply  an  agreement  to  do  the 
thing,  on  condition  of  the  performance  of  which  the  penalty  is 
to  become  void ;  and  can  an  action  of  covenant  be  brought  on 
it?  This  is  an  embarrassing  and  vexed  question.  Mr.  Chitty 
says,*  "  It  seems  that  covenant  lies  on  a  bond,  for  it  proves  an 
agreement."  It  is  doubtful  what  is  the  purport  of  this  lan- 
guage. A  bond  undoubtedly  proves  an  agreement ;  but  is  the 
agreement  proved,  the  one  stated  in  the  penalty  —  to  pay  the 
money  for  which  the  obligee  declares  himself  bound  — 
or  in  the  condition?!  The  matter  is  of  importance,  and  [42G] 
it  seems  impossible,  on  any  just  construction  of  the  in- 
strument, to  imply  from  the  condition  an  absolute  agreement. 
This  is  not  the  proper  place  for  a  more  elaborate  discussion  of 
the  matter,  but  it  could  not  with  propriety  be  altogether  over- 
looked. I  cannot,  however,  say  that  the  opinion  here  advanced 
is  supported  by  any  judicial  authority  ;  on  the  contrary,  in  New 
York,  the  Supreme  Court  has  clearly  intimated  an  opinion  that 
an  action  of  covenant  will  lie  on  a  bond  to  enforce  the  condi- 
tion.t 

Other  Cases.  —  There  may  be  other  cases  besides  those  which 

*  Chitty  on  Pleading,  vol.  i.  p.  132.  penalty  as  limiting  the  extent  of  his  obliga- 

t  Mr.    Chitty  cites   several   cases :   Hill  v.  tion. 

Carr,  1    Ch.   Cases,   294;  Holies   v.    Carr,   3  |  Clark  y.  Bush,  3  Cowen,  151. 

Swanst.  648,  which  is  in  fact  the  same ;  Nor-  In  Martin  v.  Taylor  (1  Wash.  C.  C.  E.  1), 

rice's  case,  Ilarch-ess,  178,  and  Com.  Dig.  Cov-  in  an  action  of  covenant  on,  an  agreement  se- 

enant,  A.  2.     The  two  first  cases  (in  fact  one)  cured  by  a  penalty,  Washington,  J.,  said,  that 

contain  the  obiter  dictum,  that  "  covenant  lies  "  where  there   is  a  penalty  in  an  agreement 

upon  a  bond."     The  third  was  covenant,  on  a  imder  seal,  the  party  injured  may  at  common 

covenant  proper ;  the  word  oblige  only  being  law  sue  for  the  wliole  penalty,  and  must  be 

used  instead  of  the  usual  phrase ;  and  Lord  satisfied  with  it ;  or  he  may  bring  covenant, 

C.  B.  Comjns,  Mitli  his  usual  precision,  says,  and  recover  in  damages  more  or  less  than  the 

"  Covenant  lies,  if  an  agreement  appear,  in  an  penalty." 

obligation."  This  is  unquestionably  true —  It  is  to  be  remarked  here  that  the  agreement 
"  if  the  agreement  appear."  But  in  the  condi-  contained  an  express  covenant  to  do  the  act 
tion  of  a  bond  to  do  or  refrain  from  doing  any  for  the  non-performance  of  which  the  action 
particular  act  secured  by  a  given  penalty,  does  was  brought.  The  case,  therefore,  decides 
any  agreement  appear,  absolutely  to  do  the  nothing  as  to  the  main  point,  whether  cove- 
act  or  to  respond  in  indefinite  daniages  ?  nant  can  be  lirought  on  a  bond  upon  an  agree- 
Practically,  we  well  know  that  it  is  not  so  ment  contained  in  the  condition,  and  whether 
understood ;  the  obligor  always  considers  the  in  such  suit  damages  can  be  assessed  beyond 

the  penalty. 

which  each  obligee  might  sue,  it  was  held  that  no  one  could  recover  more  than  liis  jvo  rata 
share  of  the  penalty.  If  the  damages  assessed  in  favor  of  all  exceeded  the  penalty,  each  ob- 
ligee could  recover  onlv  his  relative  share  of  it.  St.  Louis,  Alton,  and  Rock  Island  Railroad 
Company?;.  Coultas,  33  111.  188. 


486  LIQUIDATED    DAMAGES.  [CH.    XYI. 

we  have  been  just  considering,  where  although  a  j^enalty  is  pro- 
vided, damages  at  large  may  be  demanded.  So  it  has  been 
held,  where  by  the  contract  of  sale  of  certain  premises  a  deposit 
was  to  be  made,  and  to  be  forfeited  as  liquidated  damages,  pro- 
vided the  agreement  was  not  entirely  carried  out  by  the  pur- 
chaser, that  the  plaintiff  was  not  limited  to  the  deposit,  but 
might  recover  at  large.* 

*  Icely  V.  Grew,  6  Nev.  &  Mau.  467. 


CHAPTER  XVII. 

SET-OFF   AND    RECOUPMENT    OF    DAMAGES. 

No  Set-off  at  Common  Law. —  Introduced  by  the  Courts  of  Equity.  —  Statutes 
on  the  Subject.  —  Original  meaning  of  Kecoupment.  —  Cases  in  Elnglaiid. — 
Where  Suit  brought  on  the  Original  Contract ;  or  ou  a  Bill  or  Note  given  under 
it.  —  Where  Fraud  set  up.  —  Necessity  of  notice.  —  American  Signification  of 
the  Term.  —  Cases  in  this  Country.  —  Payment  after  Suit  brought. 

Before  we  leave  the  examination  of  compensation  in  actions 
of  contract,  we  have  to  consider  the  principles  upon  Avhich  an 
acknowledged  right  for  redress  or  remuneration  is  reduced  in 
its  amount  by  the  establishment  of  an  adverse  or  cross  claim, 
which  is  taken  into  consideration  in  the  same  suit,  to  use  tech- 
nical language,  by  way  of  set-off,  or  recoupment,  or  counter- 
claim. An  analogous  rule  exists  in  regard  to  actions  of. tort, 
where,  however,  it  is  known  by  the  term  mitigation. 

No  Set-off  at  Common  Law.  —  The  doctrine  of  set-off  is  so 
fully  treated  in  the  various  treatises  devoted  to  that  particular 
subject,  that  it  would  be  improper  to  do  more  than  allude  to  it 
here.  It  is  sufficient  to  say,  that  at  common  law  no  right  of 
set-off  existed,  it  being  the  object  of  the  system  to  confine  every 
suit  to  the  particular  subject  of  litigation  which  gave  rise  to  it. 
The  courts  of  equity,  however,  in  this,  as  in  many  other  cases, 
lent  a  ready  ear  to  the  appeals  made  to  them  from  the  narrow 
remedies  and  harsh  doctrines  of  the  common  law ;  and  to  pre- 
vent circuity  of  action  and  multiplicity  "of  litigation,  introduced 
the  principle  of  set-off,  a  principle  well  known  to  the  civil  law 
by  the  name  of  compensation. 

This  doctrine,  which  is  nothing  more  than  a  system  of  settling 
cross  demands  in  one  suit,  finally  appeared  so  equitable,  that 
legislation  was  resorted  to,  to  get  rid  of  the  necessity  of  applying 
to  a  court  of  equity ;  and  the  principle  of  set-off  is  now 
fully  established  in  both  American  and  English  legisla-  [428] 
tion.  It  is  unnecessary  here  to  enter  upon  an  examina- 
tion of  the  various  statutes  of  set-off;  it  is  sufficient  to  say,  that, 
a§  a  general  rule,  where  adverse  or  cross  claims  of  a  pecuniary 


488  SET-OFF   AND    RECOUPMENT.  [cil.    XYII. 

character  exist  between  the  same  parties,  and  the  demands  are 
liquidated,  the  principle  is  applied.^ 

Object  of  Statutes  of  Set-off.  —  But  the  object  of  the  stat- 
utes of  set-off  is  to  settle  mutual  accounts  and  debts.^  Wrongs 
or  torts  done,  and  unliquidated  damages  claimed,  have  never 
been  permitted  to  be  set  off!*.  And  unliquidated  damages  have 
been  defined  as  follows :  "  Unliquidated  damages  are  such  as  rest 
in  opinion  only,  and  must  be  ascertained  by  a  jury,  the  verdict 
being  regulated  by  the  peculiar  circumstances  of  each  particu- 
lar case,  which  cannot  be  ascertained  by  computation  or  calcula- 
tion, as  damaixe  for  not  usino-  a  farm  in  a  workmanlike  manner, 
for  not  building  a  house  in  a  good  and  sufficient  manner,  on 
warranty  in  the  sale  of  a  horse,  for  not  skillfully  amputating  a 
limb,  and  other  cases  of  hke  character."!  In  Illinois,  however, 
unliquidated  damages  arising  out  of  contract,  express  or  implied, 
may  be  set  off  in  actions  ex  contractu,  unless  they  are  totally 
disconnected  with  the  plaintiff's  cause  of  action.^ 

Recoupment.  —  The  same  reasons  which  operated  to  introduce 

*  Butts  V.  Collins,  13  Wend.  139,  156  ;  Mc-     Cowp.  56  ;  Freeman  v.  Hyatt,  1   W.  Black. 
Donald  v.  Neilson,  2   Cowen,  140;    Heck  v.     394. 

Sheener,  4  Serg.  &  R.  249;  10  S.  &  R.  14  ;         t  Butts  v.  Collins,  13  Wend.  156. 
U.  S.  y.  Robson,  9  Pet.  319,  325;  U.  S.  r.  Bu-         |  Sargeant    v.    Kellogg,    5    Gilman,    273; 
chanan,  8  Howard,  83 ;  Howlet  v.  Strickland,     Kaskaskia  Bridge  Co.  v.  Shannon,  1  Gilmau, 

15. 


1  This  principle  is  now  extended  in  man}-  of  the  States,  so  for  as  to  declare  that  "  an  un- 
liquidated  cross-demand  arising  from  a  distinct  and  iiifkpcndmt  contract  from  that  on  which  suit 
is  brought  is  the  subject  of  set-off."  Ellmaker  v.  Franklin  Fire  Insurance  Co.  6  Watts  &  Serg. 
439  ;  Carman  v.  Same,  6  W.  &  S.  155  ;  Fes.sler  v.  Love,  43  Penn.  313  ;  N.  Y.  Code  of  Proced- 
ure, §  150  ;  Morrison  v.  Lovejoy,  6  Minn.  319  ;  post,  452,  note.  See,  however,  Keyes  v.  Western 
Vt.  Slate  Co.  34  Vt.  SI,  post,  442,  note  ;  also  post,  446,  note. 

In  an  action  to  recover  a  sum  stipulated  as  damages  for  breach  of  an  agreement  in  considera- 
tion of  a  certain  sum  not  to  carry  on  a  particular  business  in  a  particular  place,  where  the 
whole  consideration  has  not  l)een  paid,  the  defendant  may  offset  against  the  stipulated  damages 
the  unpaid  portion  of  the  consideration  money.     Baker  v.  Connell,  1  Daly,  469. 

^  In  answer  to  a  bill  filed  by  the  State  of  Maryland  for  the  sale  of  a  railroad  under  a  mort- 
gage of  the  property  of  the  i-ailroad  company  given  to  secure  the  payment  of  an  annuity  to  the 
State,  the  Court  of  Appeals,  affirming  the  judgment  below,  refused  to  allow  the  company  to 
set  off  or  recoup  damages  sustained  by  the  destruction  of  certain  bridges  of  the  railroad  nuule 
by  the  authorities  of  the  city  of  Baltimore  in  the  beginning  of  the  late  war,  for  the  purpose  of 
destroying  communication  between  Baltimore  and  Pennsylvania,  which  act  was  apjirovcd  by 
the  governor  and  ratified  by  the  legislature  of  the  State,  saying  that  there  was  no  principle  of 
discount,  set-off,  or  recouper  known  to  the  court  which  Avould  enable  it  to  recognize  the  claim 
"  as  a  debt,  obligation,  or  liability  for  damages  liquidated  or  unliquidated."  The  State  of 
Maryland  v.  The  Northern  Central  Railway  Co.  18  Md.  193. 

Again,  that  which  was  originally  offered  by  the  defendant  and  received  by  the  plaintiff  as  a 
gratuity,  cannot  be  set  off  against  the  plaintiff's  demand.  Thus  where  it  appeared  in  an  action 
to  recover  damages  for  the  breach  of  the  condition  of  a  bond  to  remove  a  burn  standing  on  the 
defendant's  premises  to  a  greater  distance  from  the  plaintiff's  house,  that  the  ])laintiff  had  used 
the  barn  for  a  season  by  the  defendant's  assent,  rent  free  —  it  was  held  that  to  set  off  the 
plaintiff's  benefit  from  this  occupation  against  his  claim,  would  be  not  only  contrary  to  the 
original  agreement  of  the  parties  but  a  violation  of  good  faith.  Prentiss  v.  Barnes,  6  Allen 
(Mass.),  410. 


en.    XVII.]  HISTORY    OF   RECOUPMENT.  489 

the  original  doctrine  of  set-off,  have  tended  to  enlarge  it ;  and 
the  severity  of  the  statute  has  introduced  the  practice  of  lie- 
coiipmcnt.  Recoupment,  or  as  it  was  originally  called,  Recouper, 
is  a  very  ancient  term  of  our  law,  but  had  at  one  period  fallen 
into  considerable  disuse.  It  has  been  recently  revived  in  this 
country,  with,  however,  a  material  modification  of  its  meaning. 
As  fir  back  as  the  reign  of  Henry.  VIII.*  we  find  it  laid  down, 
"  If  a  man  disseise  me  of  land,  out  of  which  a  rent  charge  is 
issuant  which  has  been  in  arrear  for  several  years,  and  the  dis- 
seisor paj'  it,  if  the  disseisee  recover  in  an  assize,  the  rent 
that  the  disseisor  has  paid  shall  be  recouped  in  damagoir  [429] 
Lord  Coke  also  sa3^s,t  "  If  a  man  makes  a  lease  for  life 
rendering  rent,  or  if  there  be  lord  and  tenant  by  fealty  and 
rent,  and  the  rent  is  behind  two  years,  and  afterward  the  lessor, 
or  the  lord,  disseises  the  terre-tenant,  and  afterwards  the  tenant 
recovers  against  him  in  an  assize,  and  the  rent  which  incurred 
during  the  disseisin  is  recouped  in  damages,  yet  the  lord  or  lessor 
shall  recover  in  the  assize  the  arrearages  before  the  disseisin, 
and  the  bar  of  the  later  years  is  no  bar  of  the  arrearages  be- 
fore." And  so  he  again  says,$  "  And  as  to  the  case  of  recouper  in 
damages  in  the  case  of  rent  service,  charge,  or  seek,  it  was  re- 
solved that  the  reason  of  the  recouper  in  such  case  is,  because 
otherwise,  when  the  disseisee  reenters,  the  arrearages  of  the  rent 
service,  charge,  or  seek  would  be  revived  ;  and  therefore  to 
avoid  circuity  of  action  —  and  circuitus  est  evitandus,  et  boni 
judicis  est  lites  dirimere,  ne  lis  ex  lite  oriatur — the  arrearages 
during  the  disseisii^  shall  be  recouped  in  damages."  %  So,  again,  || 
where  an  appeal  of  maihem  was  brought,  and  for  the  defense  it 
was  urged  that  the  plaintiff  had  recovered  in  a  previous  action 
of  trespass  in  assault  and  battery,  and  it  was  held  a  good  bar,  it 
is  cited  in  the  index  as  a  case  "  where  recouper  of  damages  shall 
lie,  because  the  plaintiff  recovered  in  another  action  before."  H 
And  again  **  if  the  feoffee  or  lessee  of  the  second  disseisor  sows 
the  land,  or  cuts  down  trees  or  grass,  etc.,  and  carries  away,  yet 
after  the  regress  of  the  disseisee,  he  may  take  as  well  the  corn 

*  Dyer's  Reports,  2,  b.  this   was    held  good    under   a   pica   of  phne 

t  Pennant's  case,  Rep.  part  iii.  p.  65.  admiiustraveriint. 

t  Coulter's  case,  Rep.  part  v.  j).  .30.  Other  cases  of  recouper  or  retention  will  be 

§  And  in  this  case  it  was  held,  that  an  ex-  found    referred    to    in    this    (Couher's)    case, 

ecutor  of  his  oicn  icrong  could  not  recoup   or  chiefly  from  the  Year  Books.     See  also,  as  to 

retain  out   of  goods   in   his   own   hands   the  Recouper,  a  note  to  the  case  of  Iccly  v.  Grew, 

amount  of  a  debt  due  him  by  the  decedent.   In  6  Nev.  &  Man.  467  ;  36  E.  C  L.  R-  440. 

the  case,  however,  above  cited  from  Dyer,  it  ||  Part  iv.  ]>.  43.     Cases  of  Ajipeal,  etc. 

was  held  that  executors  might  pay  the  debts  II  So  again  in  Sladc's  case,  i)art  iv.  ]ip.  92, 

of  the  testator  out  of  their  own  money,  and  94.     But  this  is  not  a  case  of  former  recovery, 

retain  so  much  of  the  effects  of  the  testator  **  Richard  Liford's  case,  part  xi.  jip.  48,  51, 

as  woujd  be  necessary  to  satisfy  them ;  and  and  52. 


490  SET-OFF    AND    RECOUPMENT.  [CH.    XVII. 

as  the  trees,  etc.,  to  ^Yhat  place  soever  tliey  are  carried  ;  and  if 
the  disseisee  takes  them,  they  shall  be  recouped  in  damages  against 

the  disseisor.* 
[430]  In  this  same  sense  the  phrase  is  used  in  a  modern 
English  case,  where  f  suit  was  brought  upon  a  policy  on 
the  life  of  Mr.  Pitt.  The  plaintiffs  had  been  creditors  of  Mr. 
Pitt,  and  insured  his  life  for  their  own  protection.  After  his 
death,  however,  the  debt  was  paid  by  his  executors  out  of 
moneys  voted  by  Parliament  to  relieve  his  estate,  and  it  was 
held  that  the  plaintiffs  could  not  recover,  having  received  no 
damage  ;  and  in  the  case  next  cited,  Lord  Ellenborough  likened 
this  to  a  case  of  recoupment.t 

So  where  an  action  §  was  brought  on  a  policy  of  insurance  to 
Russia,  with  a  provision  that  if  the  cargo  were  denied  permission 
to  be  landed,  the  master,  should,  on  his  return,  receive  in  Lon- 
don, £2,500 ;  the  outward  cargo  was  denied  landing,  but  the 
master,  instead  of  returning  direct,  went  by  Stockholm  and 
earned  freight.  The  plaintiff  claimed  to  recover  the  £2,500  ; 
but  it  was  held  that  the  freight  earned  was  to  be  recouped  ;  and 
the  principle  of  this  case  has  been  recognized  in  this  country.jj 

Again,  in  a  case  of  assumpsit  by  underwriters  ^  on  freight, 
after  abandonment  and  payment  of  total  loss,  to  recover  freight 
earned  after  the  abandonment,  it  was  insisted  by  counsel  argu- 
endo, that  whether  entitled  under  the  abandonment  or  not,  the 
plaintiff  ought  to  have  his  damages  recouped  joro  ianto,  out  of  the 
freight  earned  by  the  defendants  on  the  homeward  voyage.** 

*  And  in  tlie  same  sense  the  maxim  of  the  pear,  hut  it  may  he  supposed  that  the  suit  -n-as 

civil  law  is  applied  :  nemo  lociiplctior  facien-  hroueht  for  the  henefit  of  the  estate, 

dus  est  ex  aliena  jactura.     So  Grotius,  ]\Iinus  §  Puller  v.  Staniforth,  11  East,  232. 

autem  quis  habere  ac  proinde  damnum  fecisse  !l  Hecksher  v.  M'Crea,  24  Wend.  .304.     See 

intelligetur,  non  in  re  tantum,  sed  in  fiiictibus  also,  Costigan  v.  Mohawk  and  Hudson  E.  R. 

qui  proprite  rei  finictus  sunt,  sive  illi  pcrcepti  Co.  2  Dcnio,  610. 

sunt  sive  non,  si  tamen  ipse  eos  percepturus  If  Barclay  v.  Stirling,  5  M-  &  Sel.  G  and  10. 

fiierat,  deductis   impensis   quihus   res   melior  **  See  also,  Richardson  arguendo,  in  Wil- 

facta  est  aut  qure  ad  fructus  percipiendos  fue-  liams  v.  London  Ass.   Co.    1    M.   &  Sel.   318 

runt  nccessariffi,  ex  regula  quce  nos  velat  locu-  and  323.     And  such  is  the  definition  given  of 

pletiores    fieri   cum   aliena  jactura.     De  Jur.  the  word  in  the  Lexicons  ;    "  Recoup,"  says 

Bel.    et    Pac.  lib.  ii.  c.  cxvii.    §  4;    Ruther-  Jacobs  (m  roc),  "  fi-om  the  'Fvci^oh  Recouper, 

forth's  Institutes,  book  i.  eh.  17.  signifies  the  keeping  back  or  stopping  some- 

t  Godsall  r.  Boldero,  9  East,  72.     See  this  thing  which  is  due,  and  in  our  law  we  iise  it 

case  cited  with  approljation  in  the  Court  of  for  defmdk  or  discount."     The  term  dtfaidh  is 

EiTors  in  New  York,  Tyler  v.  ^tna  Fire  Ins.  obsolete,  and  is  only  known  now  through  the 

Co.  12  Wend.  507.     It  has  been  overruled  in  substantive    dtfcdmtion,   used    in    promissory 

England.     See  Dalby  v.  India  and   London  notes  in  Pennsylvania  to  signify  deduction  ; 

Life   Assurance   Company,    15    C.  B.    (6  J.  and  discount  has  become  ap])ropriated  almost 

Scott)    365,   and  supra,   271,  on   the  ground  exclusively  to  banking   operations.     [Defalk, 

that  a    Contract  of  Life  Assurance  is  not  a  however,  as  a  verb,  is  also  still  used  in  legal 

Contract  of  Indemnity.  parlance  in  the  same  State.     Owens  v.  Salter, 

t  :Mr.  Ellis  says  (Insurance,  126),  that  not-  38  Penn.   St.  211  ;  Norcross  v.  Benton,  Ibid. 

withstanding  this  decision,  the  office  paid  the  517  ;  Deenu.  Herrold,  37  Penn.  St.  150. —  Ed.] 
amount  before  leaving  court.     It  does  not  ap- 


en.    XVIT.]  HISTORY    OF    RECOUPMENT.  491 

Recoupment  Originally  a  Mere  Right  of  Deduction  from 
Plaintiff's  Claim.  —  Thus,  it  is  evident  that  reconper  or  re-  [481] 
coupmcnt,  in  its  original  sense,  \vas  a  mere  right  of  deduc- 
tion from  the  amount  of  the  plaintiff's  recovery,  on  the  ground 
that  his  damages  were  not  really  as  high  as  he  alleged.* 

In  its  Modern  Sense  it  Embraces  the  Defendant's  Counter 
Claim.  —  But  this  is  not  the  sense  in  which  the  phrase  has  been 
lately  used  with  us  in  this  country.  In  Mr.  Barbour's  valuable 
compilation  on  the  law  of  Set-off,  he  says,  p.  26,  "  Before  enter- 
ing upon  the  subject  of  set-off  more  minutely,  it  will  be  proper 
to  notice  a  species  of  defense  somewhat  analogous  to  it  in 
character,  which  a  defendant  is  in  some  cases  allowed  to  make, 
and  which  is  called  rccoujymcnt.  This  is  where  the  defense  is 
not  presented  as  a  matter  of  set-off  arising  on  an  independent 
contract,  but  for  the  purpose  of  reducing  the  plaintiff's  damages, 
for  the  reason  that  he  himself  has  not  complied  with  the  cross- 
obligations  arising  under  the  same  contract.  Thus,  in  an  action 
to  recover  compensation  for  services  rendered,  the  employer  is 
entitled  to  show  by  way  of  recoupment  of  damages,  loss  sustained 
by  him  through  the  negligence  of  the  person  employed ;  and  so 
in  regard  to  a  breach  of  warranty."  Mr.  Barbour  is  unquestion- 
ably right  in  the  fact  he  states,  that  recoupment  is  thus  used  ;  but 
it  is  equally  certain  that  this  is  an  entirely  new  application  of 
the  word,  and  that  while  it  originally  merely  implied  a  deduc- 
tion from  the  plaintiff's  demand,  arising  from  payment  in  whole 
or  in  part,  or  from  recovery,  or  some  analogous  fact,  it  is  now 
understood  to  embrace  counter-claims  of  the  defendant,  and  to 
be,  in  short,  a  kind  of  irregular  and  unliquidated  setoff,  which 
has  crept  in  notwithstanding  the  rigorous  terms  of  the  statute.^ 
It  is  always  desirable  to  use  technical  terms  in  their  strict  sig- 
nification ;  but  leaving  this  to  those  who  alone  are  competent  to 
set  us  right  in  the  matter,  I  propose  now  to  consider  the  law  of 
recoupment  in  its  broader,  and,  as  I  must  think,  less  correct  in- 
terj^retation.^  It  will  be  better  understood  from  a  careful  exam- 
ination of  the  cases. 

*  'And  so,  too,  it  apjicars  from  Vincr's  in  its  ancient  sense,  will  be  found  under  the 
Abridgment,  where  various  uses  of  the  tenn    head  of  Discount ;  PI.  3,  4,  9,  and  10. 

1  Compare  Barber  i;.  Chapin,  28  Vt.  413. 

2  Recoupment  will  be  allowed  whenever  an  action  for  damages  can  be  maintained.  Li  order 
to  avoid  circuity  of  action,  the  courts  will  fovor  it.  Houston  v.  Young,  7  lud.  200.  But  the 
right  only  exists  where  a  cross  action  could  be  maintained.  Clark  v.  Wildridge,  5  Ibid.  176. 
W^here  the  plaintiff,  in  an  action  of  right,  waives  all  but  nominal  damages,  the  defendant  can- 
not introduce  evidence  of  a  set  off  for  improvements.     Daniels  v.  Bates,  2  Greene  (Iowa),  151. 

The  pendency  of  another  action,  in  favor  of  the  defendant  against  the  plaintifl',  for  the  re- 
covery of  damages  for  breach  of  contract,  will  not  prevent  a  recoupment  of  the  same  damages 


492  SET-OFF   AND    EECOUPMENT.  [CH.    XVII. 

Early  English  Rule.  —  It  was  originally  held  in  Eng- 
[432]  land,  that  in  actions  for  work  and  labor,  negligence,  or 
badness  of  materials  constituted  no  defense  to  an  action 
for  the  stipulated  sum  ;  that  the  plaintiff  was  entitled  to  his 
contract  price,  and  that  the  defendant  must  resort  to  his  cross- 
action  for  the  damac>;es  resultino;  from  the  nef(lio;ence.*  But 
this  law  was  very  soon  overruled. 

Reversal  of  the  Early  Rule.  —  In  an  action  of  assumpsit 
for  work  and  labor,!  the  plaintiff,  a  carpenter,  had  been  employed 
by  the  defendant,  a  farmer,  to  do  some  work  to  his  farm  build- 
ings ;  no  particular  sum  had  been  agreed  on.  The  defendant 
offered  to  prove  that  the  work  had  been  done  in  an  improper 
and  insufficient  manner.  To  which  it  was  replied  on  behalf  of 
the  plaintiff,  that  this  was  no  answer  to  the  present  action,  but 
the  subject  of  a  cross-suit;  and  at  Nisi  Prius  it  was  so  ruled, 
and  the  plaintiff  had  a  verdict  for  his  full  demand.  But  on  mo- 
tion for  a  new  trial,  this  was  held  wrong  ;  and  Lord  Ellenbor- 
ough,  C.  J.,  said,  — 

"  TVhere  a  specific  sum  has  been  agreed  to  be  paid  by  the  defendant,  the  plain- 
tiff may  have  some  ground  to  complain  of  surprise,  if  evidence  be  admitted  to 
show  the  work  and  materials  provided  were  not  worth  so  much  as  was  contracted 
to  be  paid,  because  he  may  only  come  prepared  to  prove  the  agreement  for  the 
specified  sum  and  the  work  done,  unless  notice  be  given  to  him  that  the  payment 
is  disputed  on  the  ground  of  inadequacy  of  the  work  done.  But  where  a  plain- 
tiff comes  into  court  upon  a  quantum  meruit,  he  must  come  prepared  to  show  that 
the  work  done  was  worth  so  much,  and  therefore  there  can  be  no  injustice  in  suf- 
fering the  defense  to  be  entered  into,  even  without  notice." 

Lawrence,  J.,  said,  "  If  even  a  specific  sum  had  been  agreed  to  be  paid,  and 
notice  given,  then  the  defendant  should  be  let  into  the  defense.  For  after  all, 
considering  the  matter  fairly,  if  the  work  stipulated  for  at  a  certain  price  were 
not  properly  executed,  the  jjlaintiff  would  not  have  done  that  which  he  engaged 
to  do,  the  doing  which  would  be  the  consideration  of  the  defendant's  promise  to 

*  Broom  v.  Davis ;   Duffit  v.  James ;  Cor-         t  Basten   v.   Butter,  7    East,  479    and  483 
mack  V.  Gillis ;  and  Morgan  v.  Richardson,     (1806). 
cited  in  Basten  v.  Butter,  7  East,  479. 

by  way  of  defense  to  a  subsequent  action,  brought  by  the  phiintiff  against  such  defendant,  upon 
the  same  contract.     Naylor  v.  Schenck,  5  E.  D.  Smith's  (N.  Y.)  C.  P.  R.  135. 

The  damages  permissible  by  way  of  recoupment,  in  reduction  of  phiintitf 's  recovery,  must 
be  capable  of  computation  with  reasonable  certainty,  and  such  as  the  defendant  might  recover 
in  a  cross-action.     Pettee  v.  The  Tennessee  Manufacturing  Co.  1  Sneed  (Tenn.),  381. 

In  Massachusetts,  where  certain  animals  in  a  drove  were  sold,  under  a  warranty  or  fraudu- 
lent representation  of  soundness,  and  some  of  thein  were  at  the  time  of  the  sale  unsound,  a,nd 
by  their  diseased  condition  .afterwards  infected  others,  the  purchaser,  in  an  action  for  the  price, 
was  allowed  to  recoup  in  damages  the  whole  loss  occasioned  by  the  presence  of  the  disease. 
Bradley  v.  Rea,  14  Allen,  20. 


CE.    XVII.]  ENGLISH    DECISIONS.  493 

pay,  and  the  foundation  on  which  his  claim  to  tlie  price  stipulated  for  would 
rest ;  and  therefore,  especially  if  he  should  have  notice  that  the  defendant  resists 
payment  on  that  ground,  he  ought  to  come  prepared  with  proof  that  the  work  was 
executed  properly;"  and  the  rule  for  a  new  trial  was  made  absolute. 

Shortly  afterwards,  in  an  action*  of  assumpsit  for  work  and 
labor,  plea  non-assumpsit,  the  defendant  showed  that  the  work 
(the  rebuilding  the  front  of  a  house)  was  ill-done  ;  to 
which  it  was  insisted  that  the  only  remedy  was  by  cross-  [433] 
action.     But  Lord  Ellenborough  said,  "  The  plaintiff  is  to 

recover  what  he  deserves I  have  had  a  conference  with 

the  judges ;  and  I  consider  this  as  the  correct  rule,  that  if  there 
has  been  no  beneficial  service,  there  shall  be  no  pay ;  but  if  some 
benefit  has  been  derived,  though  not  to  the  extent  expected, 
this  si  1  all  go  to  the  amount  of  the  plaintiff's  demand,  leaving 
the  defendant  to  his  action  for  negligence ; "  and  there  was  a 
verdict  for  defendant. 

Again,!  where  the  plaintiff  declared  on  a  contract  by  which 
the  defendants  were  to  furnish  beer  to  be  shipped  for  Gibraltar, 
and  alleged  by  way  of  breach,  that  the  beer  was  bad  and  wholly 
unfit  for  shipment,  it  appeared  that  the  defendants  had  pre- 
viously paid  the  plaintiffs  for  the  price  of  the  beer,  in  a  suit  in 
which  judgment  had  been  allowed  to  go  by  default.  Lord  El- 
lenborough said,  "  It  appears  to  me  that  you  should  have  made 
your  defense  to  the  original  action,  and  given  in  evidence  the 
bad  quality  of  the  article  supplied  either  as  an  answer  to  the 
whole  demand,  or  in  abatement  of  the  damages.  There  was  for- 
merly an  opportunity  to  do  final  justice  between  the  parties, 
and  why  should  there  now  be  a  second  litigation  ?  "  J 

Distinction  in  Engl.\nd  between  Actions  for  the  Price,  and 
ON  Notes  Given  for  the  Price.  —  A  distinction  was  originally 
taken  in  England  between  actions  brought  for  the  original  con- 
tract price,  and  suits  founded  on  a  note  and  bill  given  for  the 
price,  as  we  have  seen  above  in  Basten  v.  Butter.  So  in  two 
cases  at  Nisi  Prius,§  Lord  Ellenborough  refused  to  admit  evi- 
dence in  actions  on  bills  of  exchange  to  show  that  the  considera- 
tion had  partially  failed,  the  provisions  for  which  the  bills  were 

*  Farnswortli    v.    Garrard,    1     Camp.    38  tiff  knew  to  be  unsound.     At  the  trial,  Heath, 

(1807).  J.,  held  that  the  defendant  was  bound  to  pay 

t  Fisher   v.    Samuda  et  al.    1    Camp.    190  the  bill,  and  briny  his  action  for  the  deceit ; 

(1808).  but  on  a  motion  for  a  new  trial,  the  court 

X  Tlie   cause   was   allowed   to   go   on,   but  held,  "  that  it  was  clearly  a  fraud ;  and  as  a 

turned  on  another  point.     In  Lewis  v.  Cos-  man  cannot  recover  the  price  of  goods  sold 

grave,  2  Taunt.   2   (1809),   the  ingredient  of  under  a  fraud,  the  rule  for  a  new  trial  should 

fraud  was  superadded.     It  was  a  suit  brcuight  be  made  absolute." 

on  a  check  for  .£15,  which  had  been  given  for  §  Morgan   v.  Richardson,  1    Camp.  40,  in 

a  horse  warranted  sound,  and  which  the  plain-  notis,  and  Tye  v.  Gwynne,  2  Camp.  346. 


494  SET-OFF    AND    RECOUPMENT.  [cil.    XVII. 

given  being  very  inferior  to  what  they  should  have  been.  In  the 
latter  case,  he  said,  "  A  bill  of  exchange  cannot  be  accepted  on 
a  quanliim  meruit.  There  is  a  difference  between  want  of  consid- 
eration, and  failure  of  consideration.  The  former  may  be 
[434]  given  in  evidence  to  reduce  the  damages  ;  the  latter 
cannot,  but  furnishes  a  distinct  and  independent  cause  of 
action ; "  and  he  cited  with  approbation,  the  opinion  of  Mr. 
Justice  Denison,  in  Robinson  v.  Bland  :  *  "  There  is  a  distinction 
between  the  contract  and  the  security.  If  part  of  the  contract 
arises  on  a  good  consideration,  and  part  on  a  bad  one,  it  is  divis- 
ible. But  it  is  otherwise  as  to  the  security,  that  being  entire." 
This  distinction,  however,  we  shall  see,  has  been  disregarded  in 
the  State  of  New  York. 

Conflict  in  English  Cases.  —  In  other  respects,  also,  the 
earlier  English  decisions  were  inharmonious.  In  an  action  f 
brought  to  recover  the  amount  of  a  surgeon's  bill,  Lord  Kenyon 
permitted  the  defendant  to  give  evidence  of  unskillful  treatment 
of  him  by  the  plaintiff,  taking  the  distinction  between  a  demand 
for  skill,  where  the  question  might  be  whether  the  plaintiff  was 
entitled  to  anything  or  nothing,  and  where  the  action  was  for 
goods  sold  and  delivered,  or  other  certain  thing  of  value,  not  de- 
pending on  skill ;  and  considering  the  case  before  him  as  a 
mixed  question,  where  the  demand  was  in  part  for  skill  and  part 
for  medicine. 

But  the  Court  of  Common  Pleas  held,  %  that  in  an  action  on 
an  attorney's  bill,  negligence  could  not  be  set  up  as  a  defense, 
unless  possibly  it  was  such  as  to  deprive  the  defendant  of  all 
possible  benefit.  The  negligence  consisted  in  neglecting  to 
oppose  the  justification  of  bail.  The  bail  had  been  proceeded 
against,  but  fruitlessly.     Sir  James  Mansfield,  C.  J.,  said, — 

"  In  declaring  that  the  plaintiff  is  entitled  to  recover,  I  do  not  go  the  length 
of  saying  that  in  no  case  of  this  kind  can  negligence  in  the  party  suing  be  used 
as  a  defense  to  the  action  ;  though  I  think  it  can  only  be  used  when  the  negli- 
gence has  been  such,  that  the  party  for  whom  the  work  was  done  has  thereby 
lost  all  possibility  of  benefit  from  such  work.  That  cannot  be  said  in  the  pres- 
ent case."     And  final  judgment  was  given  for  the  plaintiff. 

American  Rule.  —  In  this  country,  the  subject  has  been  much 
considered,  and  mainly  with  reference  to  three  points  :  where 
the  defense  is  mere  failure  of  consideration ;  where  it  reaches  a 

*  2  Burr.  1082.  $  Templer  v.  McLachlan,  5  Bos.   &  Pull. 

^t  DutKt  V.  James,  cited  in  Basten  v.  Butter,     136  (1806). 
7*Ea,st,  479  (1788). 


CII.    XVII.]  AMERICAN    DECISIONS.  495 

charge  of  fraud ;  and  where  notice  of  the  proposed  defense  will 
be  required.  In  New  York,  the  question  seems  first  to  have 
been  agitated  in  a  case*  where  the  plaintilt"  below, 
Scriven,  sued  the  defendant  Jones,  in  a  justice's  court,  in  [43-5] 
an  action  of  deceit  and  Avarranty  on  the  sale  of  the  art 
of  manufacturing  potashes  in  a  new  and  improved  mode.  The 
defendant  offered  in  evidence  a  former  judgment f  rendered  in 
favor  of  Jones  in  a  suit  by  him  against  Scriven,  on  a  note  given 
by  Scriven  for  the  art  in  question,  after  evidence  on  the  point  as 
to  the  value  of  the  patent.  On  this  proof  of  the  judgment  in 
the  former  suit,  the  defendant  below  moved  for  a  nonsuit,  which 
w\as  overruled,  and  a  verdict  found  for  the  plaintiff.  This  judg- 
ment being  brought  up  by  certiomn  to  the  Supreme  Court,  was 
reversed  on  the  ground  that  the  very  question  between  the 
parties,  namely,  the  value  of  the  patent,  was  decided  in  the  first 
suit ;  and  the  court  by  implication  held,  that  in  the  first  suit  on 
the  note,  the  evidence  to  show  the  want  of  consideration  w^as 
admissible. 

Notice  of  the  Defense — Again,  t  where  the  same  question 
that  had  been  agitated  in  Templer  v.  McLachlan,  came  up  before 
the  Supreme  Court  of  New  York,  the  testimony  showing  the 
negligence  of  the  plaintiff,  as  attorney,  was  admitted  in  the  Com- 
mon Pleas,  and  a  verdict  found  and  judgment  rendered  for  the 
defendant.  When  the  case  came  up  on  error,  the  court  expressed 
doubts  as  to  the  general  rule,  but  thought  the  judgment  below 
should  be  reversed  on  another  ground,  that  of  want  of  notice. 
They  said,  "  The  defendant  neither  pleaded  nor  gave  notice  of 
this  defense ;  and  it  must  have  been  a  complete  surprise  upon 
the  plain tiftj  as  he  cannot  be  presumed  to  have  come  prepared 
to  meet  it  at  the  trial."  § 

Where  H  suit  was  brought  on  two  notes  given  for  the  purchase- 
money  of  land  conveyed  with  warranty,  but  the  title   to  which 
had  proved  bad,  the  court  held  that  the  consideration  had 
totally  failed,  and  that  this  w\as  a  good  defense  to  the  [43G] 
suit. 

*  Jones  V.  Scriven,  8  J.  R.  353.  gentl.v  managed  that  his  services  were  worth 

t  Tlie  text  uses  the  word  "  trial,"  but  the  nothing.     But  in  The  People  rx /W.  Fleming 

marginal  note  has  the  words  "  trial  and  judg-  v.  Niaf,^ara  C.  P.  (12  Wendell,  246)  the  neces- 

mcnt,"  and  so  it  should  evidently  he.  sity  of  notice  in  case   of  a  partial  failure  of 

X  Kunvan  v.  Nichols,  11  J.  R.  547.  consideration  was  insisted  on. 

§  In  Hoppini;  v.  Quinn  (12  Wend.  517),  it  i|  Frisbee  v.  Hotlnagle,  11  J.  R-  50.     But  in 

was  held,  without  any  reference  to  the  ques-  Whitney  i\  Lewis,  12  Wend.  131,  and  Batter- 

tion  of  notice  attached  to  the  plea,  that  an  at-  man  (•.'Pierce,  3  Hill,  171,  it  has  been  said 

torney  could  not  recover  in  an  action  of  as-  that  Frisbee  v.  Hofthagle  is  overruled.     See 

sump'sit  for  his  fees,  when  the  suit  which  he  also,  Lamerson  v.  Marvin,  8  Barbour  (S.  C 

had  been  retained  to  bring  had  been  so  negli-  R.),  9. 


496  SET-OFF    AND    RECOUPMENT.  [CH.    XVII. 

Fraud.  — ■  The  question  caine  up  again  in  a  case  wliicli  resem- 
bled Lewis  V.  Cosgcrave,  in  so  far  as  it  involved  a  fraud,*  It  was 
an  action  of  assumpsit  for  the  price  of  a  mare,  represented  by 
the  plaintiff  to  be  sound,  but  which,  the  defendant  offered  to 
prove,  he  knew  to  be  diseased.  The  defendant  gave  notice  of 
the  defense,  but  the  Common  Pleas  rejected  the  evidence,  and 
the  plaintiff  had  judgment.  The  Supreme  Court,  however,  held 
the  defense  improperly  excluded  :  — 

"  The  defendant  below  apprised  the  plaintiff  of  his  intention  to  rely  for  his 
defense  at  tlie  trial  upon  the  fraud  ;  and  the  established  rule  now  appears  to  be 
that,  in  cases  like  the  present,  fraud  may  be  given  in  evidence  as  a  defense,  and 
will  be  an  answer  to  the  whole  demand,  or  in  abatement  of  the  damages,  ac- 
cording to  the  circumstances  of  the  case.  This  is  the  true,  as  well  as  a  salutary 
rule,  and  well  calculated  to  do  full  and  complete  justice  between  the  parties,  most 
expeditiously  and  least  expensively." 

And  the  judgment  was  reversed.! 

Where  Clark,  $  as  administrator  of  A.  Clark,  sued  the  defend- 
ants in  a  justice's  court  for  fees  due  the  intestate  as  attorney 
and  counselor,  the  justice  nonsuited  the  plaintiff,  and  he  aj)- 
pealed  to  the  Common  Pleas.  The  intestate,  A.  Clark,  was  em- 
ployed to  prosecute  two  suits,  in  which  judgment  was 
[437]  given  as  in  case  of  nonsuit  for  not  proceeding  to  trial. 
The  defendants  below  insisted  that  the  nonsuit  was  pro- 
duced by  the  negligence  of  the  intestate,  which  went  of  course 
to  the  whole  cause  of  action ;  but  the  Common  Pleas  decided 
that  the  evidence  of  negligence  could  not  be  received  under  the 

*  Beecker  and  Beccker  v.  Vrooman,  13  J.  prove  that  the  note  was  given  for  a  clmrch- 

R.  302.  bell   purchased  of  the   plaintiffs,  which  they 

t  So  again,  in  another  case  of  fraud,  Sill  v.  covenanted  in  writing  not  to  crack  for  one 
Rood,  15  J.  R.  230.  It  was  an  action  of  as-  year,  and  to  recast  it  if  it  should  crack  in  that 
sumpsit  on  two  notes  given  in  payment  for  a  time ;  that  it  did  crack  within  the  year,  and 
shearing  niacliine.  The  general  issue  was  that  the  plaintiffs  had  not  recast  it,  having 
pleaded.  The  defendant  offered  to  prove  that  removed,  and  the  defendant  not  being  able  to 
the  plaintiff  falsely  represented  the  machine  to  find  them.  The  plaintiffs  objected  to  the  evi- 
be  of  great  value,  when  in  fact  it  was  worth  dcncc,  on  the  ground  that  no  notice  accom- 
nothing,  and  also  a  breach  of  warranty  as  to  panied  the  plea,  and  it  Avas  excluded.  A  ver- 
the  value  and  utility  of  the  machine.  Mr.  J.  diet  was  found  for  the  plaintiffs,  subject  to  the 
Spencer,  before  whom  the  caixse  was  tried,  ex-  opinion  of  the  court-  The  Supreme  Court 
eluded  the  evidence,  on  the  ground  that  nei-  held  the  evidence  of  a  refusal  to  recast  the 
ther  fraud  nur  breach  of  warranty,  although  bell  insufficient,  and  on  this  ground  gave 
they  went  to  take  away  the  whole  cause  of  judgment  for  the  plaintiffs,  and  in  giving 
action,  could  be  given  in  evidence  under  the  judgment  said,  "  It  seems  that  if  the  unsound- 
general  issue  of  non-assumpsit,  without  notice,  uess  of  an  article  merely  produced  a  partial 
Verdict  for  the  jjlaintiffs.  On  motion  for  a  diminution  of  value,  it  may  be  shown  in  miti- 
new  trial,  the  court  held  the  evidence  improp-  gation  of  damages  provided  there  was  a  fraud- 
erly  excluded,  and  a  new  trial  was  granted.  ulent  misrepresentation.      If  the  plaintiffs  had 

In  Hills  V.  Bannister,  8  Cow.  31,  the  ques-  refused  to  cast  the  bell,  I  incline  to  think  that 

tion  as  to  the  admissibility  of  proof  of  a  par-  the  partial  failure  of  consideration  iniglit  also 

tial  failure  of  consideration  without  fraud,  was  be  a  defense  in  mitigation,  (iltIiou(/li  then   he  no 

mooted,  but  not  decided.     It  was  an  action  of  fraud."     But  tlic  point  was  left  undecided. 

assum])sit  on  a   promissory  note.     Plea,   the  t  Gleason  &  Vielc  u.  Clark,  Adm'r  of  Clark, 

general  issue  only.     The  defendant  offered  to  9  Cowen,  57. 


CII.    Xyil.]  AMElUCiVN    DECISIONS.  4G7 

plea  of  the  general  issue,  and  thereupon  gave  judgment  for  the 
plaintiff  below.  On  error,  the  Supreme  Court  held  the  decision 
erroneous  as  to  the  evidence  of  negligence,  and  said,  "  That 
under  the  plea  of  the  general  issue  the  defendant  may  show 
that  the  plaintiff  never  had  any  cause  of  action  ;  if  this  species 
of  defense  goes  to  destroy  the  plaintiff's  claim  entirely,  it  is 
proper  under  the  general  issue ;  if  merely  to  reduce  the  dam- 
ages, notice  should  be  given."  But,  on  the  ground  that  the 
plaintiff's  evidence  could  not  show  a  joint  retainer  by  the  de- 
fendants, the  judgment  was  reversed. 

In  an  action*  of  assumpsit  on  a  promissory  note,  the  defend- 
ant pleaded  the  general  issue,  with  notice  that  the  consideration 
of  the  note  was  the  making  of  a  quantity  of  provision  barrels 
under  an  ag-reement  to  manufacture  them  according  to  the  in- 
spection  law,  relative  to  beef  and  pork,  and  that  a  portion  of 
the  barrels  were  manufactured  in  an  unskillful  manner,  whereby 
damage  had  accrued.  Tlie  circuit  judge  excluded  the  evidence ; 
and  a  verdict  was  given  for  the  plaintiff,  for  the  amount  claimed; 
but  the  Supreme  Court  held  the  exclusion  improper,  and  a  new 
trial  was  ordered. 

So  in  another  case  of  fraud.f  It  was  an  action  of  as-  [438] 
sumpsit  on  a  promissory  note.  Plea,  the  general  issue. 
The  defendants  proved  that  the  note  was  given  for  the  price  of 
a  mare  sold  them  by  the  plaintiff,  and  that  the  plaintiff  was 
guilty  of  deceit,  falsely  representing  her  to  be  sound,  when  in 
fact  she  had  a  disease  of  which  she  afterwards  died.  The  judge 
received  the  testimony,  deciding  that  if  the  mare  was  entirely 
tvilhout  value,  the  evidence  was  admissible,  but  if  she  was  of  some 
value  the  evidence  was  not  proper ;  and  the  question  of  value 
he  submitted  to  the  jury.  The  jury  found  for  the  plaintiff  the 
amount  of  the  note.  The  Supreme  Court  upon  the  argument 
of  exceptions  to  the  charge,  held  that  the  defendants  could  not 
say  that  the  horse  was  valueless,  nor  treat  the  sale  as  void,  be- 
cause they  had  retained  the  property ;  that  in  order  to  put 
themselves  in  a  situation  to  do  that,  they  should  have  returned 
the  mare  when  they  discovered  the  falsity  of  the  representation; 
and  a  new  trial  was  denied.^ 

*  Spaulding  v.  Vandercook,  2  Wciid.  431.  f  Burton   v.  Stewart,  .3   Wend.  236  (1829), 

and  Spaulding  v.  Vandercook,  2  Wend.  431. 

1  In  an  action  brought  upon  promissory  notes,  the  consideration  of  whicli  was  workand  hibor 
done  by  the  phiintiff  for  the  defendants,  the  defense  was  that  while  tlie  phiintitf  was  in  the 
employ  of  the  defendants,  as  their  servant,  tiiey  were  possessed  of  drawings,  ])lans,  models,  and 
patterns  of  steam-engines,  etc.,  wliich  liad  names,  numbers,  and  marks  inscribed  on  them,  so  as 
to  identify  them  ;  and  that  the  plaintiff,  contrary  to  his  duty  as  such  servant,  destroyed  the 
drawings  and  plans,  and  obliterated  the  names,  numbers,  and  marks,  of  the  plans,  models,  and 

32 


498  set-off  and  recoupment.  [ck,  xvii. 

In  New  York  the  Doctrine  applies  to  Actions  on  Sealed  In- 
struments. —  Again,  recently,  the  general  doctrine  has  been  re- 
peatedly reaffirmed,  in  cases  of  contract,*  ^  and  also  in  cases  of 
fraud.  In  a  case  of  fraud  in  the  sale  of  Iand,t  the  general  doc- 
trine was  thus  laid  down.  The  case  was  an  action  of  debt  on 
bond.  The  defendant  offered  to  prove  that  it  was  given  in 
part  purchase  for  land  which  the  plaintiff  had  fraudulently  and 
falsely  represented  to  be  very  different  from  what  it  was. 
Bronson,  J.,  said,  that  under  the  statute  (2  R  S.  p.  406,  §  77) 
which  declares,  "  that  a  seal  shall  only  be  presumptive  evidence 
of  a  sufficient  consideration,  which  may  be  rebutted  in  the  same 
manner  and  to  the  same  extent  as  if  the  instrument  were  not 
sealed,"  the  defendant  would  be  allowed  to  recoup  damages 
in  an  action  upon  a  sealed  as  well  as  on  an  unsealed  instru- 
ment.t 

Defense  of  Bad  Workmanship.  —  Again,  where  Button  sued 
Grant,§  for  not  doing  work,  as  a  carpenter,  in  a  workmanlike 
manner.  The  defendant  pleaded  the  general  issue,  and  a  former 
action  by  him  as  plaintiff*,  for  his  pay  for  the  same  woi'k.  It 
was  proved  that  on  the  former  action  the  plaintiff  in  this  suit 
offered  evidence  that  the  work  was  unskillfully  done,  but  that  the 
justice  excluded  the  evidence,  and  gave  judgment  for  the  then 
plaintiff,  on  the  ground  that  the  defendant  was  bound  by  his 
bargain.  On  this  evidence  judgment  was  given  by  the  justice 
in  this  suit  for  the  defendant  in  error  (the  plaintiff  below, 
Button).  But  on  certiorari,  the  Supreme  Court  said  that  the 
plaintiff  was  barred  by  the  former  judgment,  and  that  the  jus- 

*  The  Mayor  of  Albany  i'.  Trowbridge,  5  also,  M'Cullough  v.    Cox,   6  Barb.  S.  C.  R. 

Hill,  71  ;  affirmed  in  error,  7  Hill,  429.     Bar-  386. 

ber  V.  Rose,  Ibid.  76  ;  Whitbeck  v.  Skinner,  7  {  And  see  to  same  point,  Lamerson  v.  Mar- 
Hill,  .53  ;  and  see  also,  Judd  v.  Denison,  10  vin,  8  Barb.  S.  C.  K.  9. 
Wend.  512.  §  Grant  v.  Button,  14  J.  R.  377. 

t  Van  Epps  v.  Harrison,  5  Hill,  63.     See 

patterns.  Held,  that  the  defendants  might  give  evidence  of  such  wrongftil  acts  of  the  plaintiff, 
for  the  purpose  of  reducing  the  amount  of  the  recovery ;  it  not  appearing  that  the  damages 
sustained  by  the  dciendants,  by  means  of  such  acts,  were  known  to  tlicm  or  were  taken  into  the 
account  on  liquidating  the  amount  due  to  the  plaintiff  and  giving  the  notes  therefor.  The 
damages  to  be  allowed  in  such  a  case,  by  way  of  recoupment,  being  such  only  as  arise  from 
breach  of  the  plaintiff's  contract,  the  deduction  was  to  be  limited  to  such  damages,  and  nothing 
could  be  allowed  on  account  of  the  malice  with  which  the  wrongful  acts  were  done.  The 
Allaire  Works  v.  Guion,  10  Barb.  (N.  Y.)  55. 

1  Where  on  an  entire  contract  of  sale,  the  vendor  delivers  part  only,  the  unpaid  contract 
price  of  the  goods  delivered  may,  at  least  in  equity,  be  recouped  against  the  purchaser's  claim 
for  damage  for  non-delivery  of  the  remainder.  Taylor  v.  Read,  4  Paige,  561.  The  severer 
doctrine  announced  in  Stephens  v.  Beard  (4  Wend.  604),  which  would  not  permit  the  damages 
sustained  by  a  partial  non-performance  to  be  reduced  by  proof  of  partial  performance,  is  there 
disapproved. 


CH.    XVII.]  AMERICAN    DECISIONS.  499 

tice  erred  in  refusing  to  admit  the  evidence  in  the  former  suit ;  ^ 
and  the  judgment  was  reversed.^ 

So  where  covenant*  was  brought  on  a  sealed  agreement  to 
buikl  a  certain  wall  for  $1,500,  the  defendant  offered  to  sliow 
that  the  work  was  not  equal  in  quality  to  what  tlie  contract 
required.  The  referees  rejected  the  evidence,  and  for  that  reason 
the  report  was  set  aside.  The  court  said,  "  The  offer  came  under 
the  categorj'  of  recoupment.  Recoup  is  synonymous  with  de- 
faulk  or  discount.  It  is  now  uniformly  applied  where  a  man 
brings  an  action  for  a  breach  of  contract  between  him  and  the 
defendant,  and  the  latter  can  show  that  some  stipulation  in  the 
same  contract  was  made  by  the  plaintiff,  which  he  has  violated : 
the  defendant  may,  if  he  choose,  instead  of  suing  in  his  turn, 
recoup  his  damages  arising  from  the  breach  committed  by  the 
plaintifij  whether  liquidated  or  not." 

By  the  New  York  Rule  two  Suits  are  not  Permitted  when 
Justice  can  be  had  by  one.  —  Soon  after,  in  the  same  State,  the 
subject  we  are  now  considering  was  largely  discussed,!  and  the 
rule  definitively  settled. 

The  23laintiff,  a  stove  dealer,  sued  the  defendant  for  the  price  of 
a  patent  cooking-stove,  and  sundry  other  articles.  The  defend- 
ant gave  notice  with  his  plea,  that  he  would  prove  that  the  plain- 
tiff warranted  the  stove  to  draw  and  cook  well ;  that  it  did  not 
answer  the  warranty  ;  that  he  had  offered  to  return  it ;  but  that 
the  plaintiff  refused  to  take  it  back.  It  was  not  pretended  that 
there  was  any  fraud.  This  evidence  was  rejected,  on  the  ground 
that  unliquidated  damages  for  a  breach  of  warranty  cannot  be 
set  off  (no  fraud  being  shown)  in  an  action  of  assumpsit.  The 
jury  found  for  the  plaintiff  his  whole  demand.  Judgment,  and 
errror.  It  was  contended  in  the  Supreme  Court,  for  the 
defendant  in  error,  that  a  partial  failure  of  consideration,  [439] 
unless  occasioned  hij  the  fraud  of  the  plaintiff,  could  not 
be  given  in  evidence  in  reduction  of  the  damages.  But  Mr.  J. 
Marcy,  in  delivering  the  opinion  of  the  court,  said  (p.  492) :  — 

*  Ives  r.  Van  Epps,  22  Wend.  155.  t  SI'Allister  v.   Reah,  4   Wend.   483,  and 

Reab  v.  M'Allister,  8  Wend.  109,  in  Error. 

1  In  a  contract  for  finishinji  a  building,  a  party  sustaining  damage  by  the  use  of  poor  ma- 
terials and  workmanship,  may  recoup  under  the  general  issue,  by  way  of  reducing  the  recovery 
nnder  the  quantum  meruit  or  valeliat  counts  ;  the  damages  so  recouped,  to  be  deducted  from  the 
value  of  the  labor  and  materials  proportionately,  as  fixed  by  the  contract.  Higgins  v.  Lee,  16 
111.  495.  To  a  like  etfect  is  Robinson  v.  Mace,  16  Ark.  97.  But  see  2  Greene  (Iowa), 
257. 

-  So  damages  for  not  finishing  a  building  by  the  time  agreed,  may  be  recouped  in  an  action 
by  the  contractor  for  payment.  Abbott  v.  Gatch,  13  Md.  314.  So  in  California,  damages 
actually  suffered  from  a  breach  of  a  vendor's  covenant  may  be  set  oft"  in  an  equitable  action  for 
the  price.     Walker  v.  Sedgwick,  8  Cai.  398. 


500  SET-OF    AND    RECOUPMENT.  [CH.    XVII. 

"  From  an  examination  of  the  cases,  I  am  satisfied  that  in  those  where  the 
damages  arising  from  a  breach  of  warranty  in  the  sale  of  chattels  have  been 
allowed  to  be  given  in  evidence  by  the  defendant  to  reduce  the  amount  of  re- 
covery below  the  stipulated  price,  the  decisions  of  the  court  have  not  proceeded 
on  the  ground  that  the  express  contracts  were  void  by  reason  of  fraud,  and  that 
the  recovery  was  had  upon  a  quantum  meruit,  or  quantum  valebat,  upon  implied 
contracts,  but  upon  a  principle  somewhat  different  from  eitlier  of  those  adverted 
to  in  this  case  by  the  court  below  —  upon  a  principle  which  has  of  late  years  been 
gaining  favor  with  courts,  and  extending  the  I'ange  of  its  operations.  Such  de- 
fense is  permitted,  to  avoid  circuity  of  action.  A  second  litigation  on  the  same 
matter  should  not  be  tolerated  when  a  fair  opportunity  can  be  afforded  by  the 
first  to  do  final  and  complete  justice  to  the  parties.  If  a  defense  resting  on  such 
a  principle  is  allowed,  as  I  think  it  is,  in  a  case  of  warranty  7naM  fide,  I  see  no 
good  reason  for  not  allowing  it  in  a  case  of  warranty  bond  fide.  The  effect  would 
be  as  salutary,  and  the  inconveniences  arising  therefrom  would  be  as  few,  in  the 
one  case  as  in  the  other.  The  distinction  contended  for  on  the  part  of  the  defend- 
ant here  is  recognized,  I  admit,  in  many  cases,  and  some  of  high  authority;  but 
in  others,  and  those  mostly  of  a  more  recent  date,  it  seems  to  me  to  have  been 
disregarded."  .  ..."  I  am  persuaded  that  if  we  should  circumscribe  the 
operation  of  the  rule  in  the  manner  contended  for  by  the  defendant  in  error  here, 
we  should  limit  its  usefulness  ;  but  by  extending  it  to  cases  of  sale  on  warranty 
without  fraud,  we  shall  thereby  curtail  litigation,  without  creating  confusion  by 
encroachments  upon  established  principles  of  law.  I  am  therefore  of  opinion 
that  the  court  below  erred  in  refusing  the  evidence  offered  by  the  defendants." 
And  the  judgment  was  reversed. 

The  same  case  came  up  before  the  Court  of  Errors ;  *  when 
Mr.  Chancellor  Walworth,  in  giving  his  reasons  for  affirmance, 
said.:  — 

"  I  consider  the  rule  adopted  on  this  subject  perfectly  just  and  equitable,  when 
the  plaintiff  has  notice  of  the  defense  intended  to  be  set  up,  and  calculated  to  do 
cora^ilete  justice  between  the  parties,  without  putting  them  to  the  expense  of  two 
suits  when  one  is  much  more  likely  to  effect  the  object  of  fair  litigation.  Indeed, 
if  one  of  the  parties  is  insolvent,  and  the  other  responsible,  it  is  the  only  way  in 
which  justice  can  be  done  ;  at  least  as  to  small  demands  which  will  not 
|_440J    bear  the  expense  of  a  suit  in  chancery  to  obtain  an  equitable  set-off." 

He  also  said  that  the  distinction  taken  in  Ens-land  between  a 
suit  on  the  original  contract  and  a  suit  upon  a  note  or  any  other 
security  taken  for  the  contract  price,  had  not  been  adopted  by 
the  courts  of  New  York.     The  judgment  was  affirmed.!  ^ 

*  Reab   v.   M'Allister,   8   Wend.    109    and     settled  in  Reab  v.  M'Allister,  was  applied  to 

117.  "^  the  case  of  a  master  of  a  sloop;  and  in  an 

t  In  Still  V.Hall,  20  Wend.  51,  the  principle     action  of  assnnipsit,  brought  by  such  a  master 

1  In  a  suit  in  Indiana,  brought  on  promissory  notes  and  to  foreclose  a  mortgage,  the  defense 
was  that  the  notes  were  given  to  secure  the  part  payment  of  the  price  of  a  steam-engine  and 


CH.    XVII.]  AMERICAN    DECISIONS.  501 

In  a  suljsequent  case  *  in  the  same  court,  where  suit  was 
brought  for  breach  of  warranty  in  a  sale  of  a  horse,  it  was  shown 
that  the  pLaintifl'  had  given  his  note  for  the  price  of  the  same 
horse  and  paid  it  after  suit,  and  it  was  objected  that  the  evidence 
of  breach  of  warranty  should  have  been  urged  in  that  suit ;  the 
court  held  that  the  evidence  would  have  been  admissible,  Ijut 
that  the  now  plaintiff  was  not  bound  to  use  it,  and  that  the  fact 
of  his  not  having  availed  himself  of  it  was  no  bar  to  the  present 
suit. 

Actions  for  Use  and  Occupation  and  Rent.  —  And  so  in  an 
action  for  use  and  occupation,  if  the  defendant  be  entitled  to 
damages  on  account  of  tlie  tenement  not  being  repaired, 
they  may  be  set  up  by  way  of  reducing  or  extinguishing  [441] 
the  rent.t  ^     And  so,  too,  in  the  action  of  replevin  after 

for  his  wages,  it  was  held  competent  for  the  except  by  virtue  of  an  express  covenant ;  and 

owners  to  "recoup"  the  damages  sustained  by  it  has  been  repeatedly  held  that  even  a  failure 

them  in  consequence  of  the  plaintiff's  negli-  of  the  landlord  to  comply  with  his  covenant 

gcnce,  in  laying  the  sloop  in  such  a  way  that  furnishes  no  answer  to  the  suit  for  the  rent, 

she  was  run  into  and  sunk;  and  the  referees  Etheridge  v.  Osborn,  12  Wend.  529.     Sut  on 

having  rejected  the  evidence,  their  report  was  principle    this    might    be  ;    as    the    bai-gaiu, 

set  aside.  though  expressed    in   separate    covenants,   is 

In  Blanchard  v.  Ely,  21  Wend.  342,  in  an  contained  in  one  instrument,  and  made  at  the 

action  brought  to  recover  the  price  of  a  steam-  same  time.     See  Dorwin  v.  Potter,  5  Denio, 

boat,  the  doctrine  of  Reabr.  M'AlIistcr,  "  that  306,  where,  in  assumpsit  for  rent,  the  defend- 

proof  of  any  damages  arising  from  a  plaintiff 's  ant  was  allowed  to  recoup  his  damages  for 

breach  of  the  contract  on  which  he  sues,  may  want  of  repairs.     And  it  is  worthy  of  atten- 

be  received  to  reduce  his  claim,"  was  again  tion,  that  in  Tone  v.  Brace,  8  Paige,  .597,  the 

recognized.  chancellor  appeared  to  consider  the  docti-ine 

*  Cook  V.  Mosely,  13  Wend.  277.  of  recoupment    had   reached    far   enough    to 

t  Westlake    v.    Degraw,    25    Wend.    669.  cover   in   this   way  distinct  covenants   under 

The  landlord,  however,  is  not  bound  to  repair,  seal. 


boiler  manufactured  for  the  defendants  to  be  used  in  a  saw-mill,  of  which  purpose  the  makers 
had  knowledge.  The  engine  and  boiler  were  worthless  in  consequence  of  defects  in  materials 
and  workmanship,  by  reason  of  which  the  boiler  burst,  and  damaged  the  defendants'  mill,  and 
their  other  machinery  was  less  valuable  in  consequence.  This  defense  was  held  gooil '  on 
demurrer.     Page  v.  Ford,  12  Ind.  46. 

1  In  New  York,  in  an  action  by  a  lessor  for  rent  reserved,  the  lessee  may  recoup  damages 
sustained  by  a  breach  of  an  implied  covenant  for  quiet  enjoyment.  The  Mayor,  &c.,  of  New 
York  V.  Mabie,  3  Kern.  151,  reversing  S.  C.  2  Duer,  401.  But  in  an  action  by  a  lessor 
against  his  lessee  for  rent  due  for  a  portion  of  the  term  of  a  lease,  damages  sustained  by  the 
defendant  from  the  breach  by  the  plaintiff  of  a  covenant  contained  in  the  lease  that  the  sub- 
cellar  of  the  premises  should  at  all  tiims  ditrintj  the  term  "  be  fi-ee  from  the  percolation  of  water 
through  the  walls  or  floor  thereof,"  cannot  be  set  ofi".  Bcnkard  v.  Babcock,  2  Robertson  (N.  Y. 
Superior  Court),  175.  And  it  has  been  held  in  the  same  State  that  acts  on  the  part  of  a  land- 
lord, disturbing  the  tenant  in  the  beneficial  enjoyment  of  the  demised  premises,  cannot  lie  set 
up  as  a  ground  of  recoupment  unless  such  acts  amount  to  an  eviction.  Edgerton  v.  Page, 
5  Abbott's  Pr.  R.  1.  In  Georgia,  where  a  party  entered  upon  premises  under  a  contract  of 
purchase,  and  erected  improvements  thereon,  and  the  landlord  subsequently  failed  to  make  title  ; 
Held,  in  an  action  against  the  former,  for  use  and  occupation,  that  he  could  not  plead,  by 
way  of  set-off,  the  value  of  the  improvements.  Barnes  v.  Shinholster,  14  Ga.  131.  But  under 
the  comprehensive  counter-claims  allowed  by  the  modern  Codes  of  Procedui'e,  as  in  New  York 
(N.  Y.  Code  of  Procedure,  §  149,  subd.  2),  the  landlord  in  his  suit  for  rent  is  no  longer  exempt 
from  a  defense  pro  tauto  founded  on  his  own  failure  to  comply  with  the  covenants  in  a  lease, 
provided  the  damages  from  such  failure  can  be  definitely  ascertained.  Sec  Crane  v.  Harduian, 
4  E.  D.  S.  (N.  Y.)  339. 


502  SET-OFF    AND    RECOUPMENT.  [CH.    XVII. 

distress  for  rent.  But  not  under  a  plea  of  eviction.*  Nor  can 
mere  tortious  acts  of  the  landlord,  wholly  independent  of  the 
covenants  of  the  respective  parties,  be  set  up  as  a  defense.! 

So,  too,  in  an  action  for  rent,  fraud  can  be  set  up  by  way  of 
recoupment.  In  a  subsequent  case  in  the  Supreme  Court  of 
New  York,  where  suit  was  brought  for  rent,  it  was  shown  the 
defendant  was  induced  to  sign  the  lease  through  the  fraudu- 
lent representations  of  the  plaintiff  that  the  lot  comprehended 
a  certain  parcel  of  land,  which  proved  to  belong  to  the  corpora- 
tion of  the  city  of  New  York.  It  was  held,  that  he  had  a  right 
to  recoup  the  damages  resulting  from  the  fraud,  and  that  they 
were,  at  least,  the  rent  which  he  had  to  pay  for  the  corporation 
property.^ 

Recoupment  is  allowed  though  both  Demands  are  Unliquidated. 
—  The  subject  was  recently  considered  in  an  action  §  brought 
on  a  promissory  note  given  for  w^ood,  which  had  been  destroyed 
by  reason  of  the  payee  of  the  note  having  burned  over  a  piece 
of  fallow  ground  adjacent  to  the  lot  where  the  wood  lay,  and 
against  the  consequences  of  which,  at  the  time  of  the  giving  of 
the  notes  he  had  undertaken  to  guaranty  the  defendants.  At 
the  trial,  the  circuit  judge  excluded  the  evidence  wdiicli  was 
offered  as  a  defense  to  the  note.  But  on  a  motion  for  a  new 
trial,  this  was  held  erroneous,  and  Bronson,  J.,  said,  "  It  is  not 
a  question  of  set-off,  as  the  plaintiff's  counsel  seems  to  suppose, 
but  of  recoupment  of  damages.  When  the  demands  of 
[442]  both  parties  spring  out  of  the  same  contract  or  trans- 
action, the  defendant  may  recoup,  although  the  damages 
on  both  sides  are  unliquidated ;  but  he  can  only  set  o^when  the 
demands  of  both  parties  are  liquidated,  or  capable  of  being  ascer- 
tained by  calculation."  It  was  further  urged  that  the  damages 
claimed  by  the  defendant  did  not  spring  out  of  the  contract  of 
sale,  but  arose  under  the  collateral  agreement  of  the  plaintiff  to 
indemnify  against  the  fire.  But  while  the  court  admitted  "  that 
there  could  be  no  recoupment  by  setting  up  the  breach  of  an 
independent  contract  on  the  part  of  the  plaintiff,"  still,  here  the 
bargain  was  held  to  be  one  and  the  same.P 

*  Nichols  r.  Dusenbury,  2  Comstock,  363.  §  Batterman  v.  Pierce,  3   Hill,    171.     See 

t  Cram  v.  Dresser,  3  Sandford,  S.  C.  120.  this  case  commented  ou  in  Cram  v.  Dresser,  2 

j  Allaire  v.  Whitney,  1  Hill,  484  ;  and  see  Sandford,  S.  C.  120. 

also,  Whitney  v.  Allaire,  4  Denio,  554.  ||  "  In  two  cases,"  said  the  court,  "  Tuttle  v. 

1  So  in  Connecticut,  the  doctrine  is  well  established.  In  the  case  of  Avery  v.  Brown,  31 
Conn.  398,  the  court  answers  the  objection  that  the  defendant's  damages  are  unli(|ui(lateil,  by 
the  maxim  Id  certum  est  quod  certum  reddi  potest,  saying-  that  witnesses  wlio  know  the  jiroperty 
and  the  state  of  the  market  will  give  the  data  by  which  the  amount  of  damages  to  be  deducted 


CH.    XVII.]  AMERICAN   DECISIONS.  503 

So  wlien  a  horse  hired  to  perform  a  certain  journey  hecomes 
disaljled  while  on  his  return,  without  fault  on  the  part  of  the 
hirer,  so  that  he  is  unable  to  travel,  and  the  hirer  is  thereby 
compelled  to  procure  other  means  of  returning  home,  and  to 
mcur  expenses  in  consequence  thereof,  —  those  expenses  may 
be  recouped  against  the  bailor  in  an  action  for  the  hire  of  the 
horse,  even  to  the  full  extent  of  the  price  agreed  for  his  hire* 

Where  suit  was  brought  t  by  a  banking  association,  on  a  note 
secured  by  pledge  of  stock,  it  was  suggested  that  an  UTCgular  or 
prejudicial  sale  of  the  pledge  might  be  taken  advantage  of  imder 
the  doctrine  of  recoupment ;  but  the  point  was  not  decided,  and 
it  would  certainly  be  a  great  extension  of  the  doctrine,  and  would 
occasion  an  inquiry  often  very  embarrassing  and  entirely 
foreign  to  the  original  cause  of  action4  [443] 

The  Party  must  elect  between  Recoupment  and  a  Cross-action. 
—  Nor  is  the  party  entitled  to  recoup  —  as  for  instance  the 
maker  of  a  note  given  for  the  price  of  goods,  who  seeks  redress 
for  the  non-delivery  at  the  stipulated  time  —  denied  this  relief 
because  he  has  commenced  a  suit  against  the  seller ;  but  he  will 
be  obliged  to  elect  between  his  own  suit  and  the  recoupment.§^ 

So  in  Alabama,  defendant  by  electing  to  recoup  the  damages 
when  sued  for  a  breach  of  contract,  thereby  precludes  himself 
from  afterwards  suing  for  damages. || 

Tompkins,  2  Wend.  407,  and  Sickels  v.  Fort,  *  Harrington  v.  Snyder,  3  Barbour's  S.  C. 

15    Wend.   559,  this   doctrine   has   been  lost  R.  380. 

sight  of.     The  trvith  is,  that  the  doctrine,  al-  t  Willonghby  v.  Comstock,  3  Hill,  389. 

though  founded  on  the  plainest  principles  of  t  In  Taggard  v.    Curtenius,    15    Wendell, 

justice,    is   not   of   very   long   standing;  but  155,  a  defense  substantially  of  tbis  character 

the  ])rinciple  is  now  too  firmly  settled  to  be  was  overruled. 

shaken  by  a  few  straggling  cases,  or  the  occa-  §  Fabbricotti  v.  Laxmitz,  3  Sandf.  S.  C.  E. 

sionai  dicta  which  seem  to  look  in  the  oppo-  743. 

site  direction."  ||  McLane  v.  Miller,  12  Ala.  (N.  S.)  643. 

can  be  calculated.  And  the  principle  applies  when  the  subject  of  the  contract  is  real  estate,  as 
well  as  where  it  is  personal  ])roperty. 

There  is  no  more  difficulty  in  showing  the  defendant's  damages  by  way  of  reducing  the 
plaintitf 's  claim  than  in  an  independent  action  for  the  same  danuiges. 

But  in  Vermont,  on  tlie  contrary,  the  partial  failure  of  the  consideration  of  a  promissory 
note  unliipiidated  and  subject  to  the  estimation  of  a  jury,  cannot  be  received  to  reduce  the 
amount  of  the  recovery.  Richardson  v.  Sanborn,  33  Vt.  75 ;  Burton  v.  Scliermerhorn,  21  Vt. 
289. 

And  it  is  there  denied  that  recoupment,  in  the  broader  and  modern  sense  defined  in  the  text, 
"  has  lieen  extended  far  enougli  to  enalile  a  defendant  to  set  up  the  violation  of  distinct  and  in- 
dependent stipulations  by  the  plaintiff' in  a  contract,  in  answer  to  damages  claimed  by  tlie  jilain- 
tiff  for  the  non-performance  by  the  defendant  of  the  stipulations  of  such  contract  on  his  ]iart." 
"  We  do  not  think,"  says  Mr.  C.  J.  Poland,  in  delivering  tbe  opinion  of  the  Supreme  Court 
of  that  State  in  the  case'^of  Keyes  v.  Western  Vt.  Slate  Co.  (34  Vt.  81)  in  January,  1861,  "the 
doctrine  has  ever  been  carried  to  that  extent  in  this  State  ;  and  we  doubt  if  it  is  yet  settled  to 
that  extreme  in  New  York,  where  the  courts  have  gone  beyond  all  others  in  favor  of  what  is 
there  termed  the  reronpment  of  damages." 

1  McKinney  v.  Springer,  3  lud.  59  ;  Epperly  v.  Bailv,  3  Ind.  72  ;  Rankin  v.  Harper,  4  Ind. 
585. 


504  SET-OFF    AND    RECOUPMENT.  [CH.    XVII. 

Real  Estate. — The  doctrine  does  not  appear  always  appli- 
cable to  real  estate.  Thus,  where  a  promissory  note  was  given 
in  consideration  of  the  conveyance  of  certain  premises,  and  the 
defendant  was  let  into  possession,  but  the  plaintiff  refused  to 
convey,  the  Court  of  King's  Bench  held  the  refusal  to  be  no  de- 
fense to  an  action  on  the  note,  saying  that  the  consideration 
had  not  wholly  failed.*  And  the  same  principle  has  been  recog- 
nized in  this  country.!  ^ 

Chattels. — In  regard  to  chattels  generally,  this  case  cannot 
arise,  because  there  is  no  evidence  of  title  necessary.  But  in 
regard  to  vessels,  where  a  bill  of  sale  is  requisite,  the  same 
question  might  present  itself  As  above  presented,  the  decision 
just  cited  seems  correct,  because  there  was  no  allegation  of  dam- 
ages sustained  by  the  refusal  to  complete  the  transfer.  But  if 
such  mischief  as  the  loss  of  a  good  offer  were  the  result,  it  would 
seem  that  it  should  constitute  a  defense  pro  ianto. 

I  have  reviewed  the  above  cases  somewhat  in  chronological 
order,  because  the  doctrine  is  one  of  recent  growth ;  and  in  New 

York  it  may  now  be  safely  said  that,  whether  in  cases  of 
[444]   sales  of  chattels,  contracts  for  labor  and  materials,  or  for 

professional  services,  whether  the  action  be  for  the  orig- 
inal contract  price,  or  on  a  security  given  therefor,  and  also  in 
actions  for  rent,  it  is  competent  for  the  defendant  to  give  in 
evidence  in  diminution  or  recoupment  of  damages,  any  fraud, 
breach  of  warranty,  or  negligence,  by  which  he  has  been  injured, 
growing  out  of  and  relating  to  the  particular  thing  in  question, 
and  the  whole  matter  is  to  be  submitted  to  the  jury.^ 

*  Moggridge  v.  Jones,  3  Camp.  38,  and  14  t  Freliglii^.  Piatt,  5  Cowen,  494;  and  Green- 
East,  486.  leaf  V.  Cook,  2  Wheaton,  13. 

1  But  the  principle  is  generally  applied  in  the  United  States  in  actions  on  notes  for  the 
price  of  real  estate.  The  defendant  may  recoup  the  damage  sustained  by  him  by  reason  of  the 
misrepresentations  of  the  plaintiff  as  to' the  value,  quality,  or  quantity  of  the  land.  So  in  In- 
diana in  such  an  action,  the  defendants  were  held  entitled  to  an  abatement  from  the  note  the 
measure  of  which  was  "  what  the  land  not  included  in  the  deed,  but  included  in  the  misrepre- 
sentation, would  cost  to  obtain  it  under  a  writ  of  ac?  quod  damnum  or  other  means  equally  cheap 
and  expeditious."  Reynolds  v.  Cox,  11  Lid.  262.  So  in  Missouri,  House  v.  Marshall,'! 8  Mo. 
369.  So  in  an  action  upon  bonds  given  for  the  purchase-money  of  land,  the  defendant  may  set 
irp  by  way  of  recoupment,  damages  for  tlie  removal  and  conversion  of  fixtures,  witlnuit  his 
knowledge  or  consent,  after  the  contract  of  sale  and  before  a  formal  transfer  of  the  land  and 
the  execution  of  the  bonds.  Grand  Lodge  of  Masons  v.  Knox,  20  Mo.  433.  See  also,  Hall  v. 
Clark,  21  Ibid.  415. 

The  amount  paid  to  discharge  an  incumbrance  npon  Land  conveyed  with  a  warr.anty  against 
incumbrances,  m.ay  if  reasonable,  and  the  least  for  which  the  incninbrance  could  be  Iwiuglit  in, 
be  set  up  as  a  defense  (in  the  absence  of  any  other  controlling  agri'ement  between  the  grantor 
and  grantee),  by  way  of  recoupment,  to  a  suit  by  the  assignee  or  jiayee  of  a  note  given  for  the 
last  instalment,  at  least,  of  the  purchase-money. '  Baker  v.  Railsbasck,  4  Ind.  533. 

In  an  action  on  a  title  bond  by  the  vendee  against  the  vendor  of  real  estate  after  eviction  by 
title  paramount,  the  defendant  cannot  recoup  for  the  rents  and  jjrofits  of  the  land  received  by 
the  ])urcli.aser.     Greene  v.  Allen,  Adm'r,  32  Ala.  (N.  S.)  215. 

^  See  Walker  v.  McCoy,  34  Ala.  659.     And  it  may  be  said  generally,  without  citation  of 


en.    XVII.]  AMERICAN    DECISIONS.  505 

Recoupment  is. Confined  to  the  Subject-matter  of  the  Action. 
—  It  is  to  l)e  observed,  however,  that  the  right  of  recoupment 
is  limited  to  damages  resulting  from  the  same  subject-matter  for 
which  the  action  is  brought.^  So  where  there  are  distinct  sales, 
the}^  cannot  be  regarded  as  one  transaction,  so  as  to  entitle  the 
defendant,  in  an  action  for  the  price  of  the  last  parcel  delivered, 
to  recoup  his  damages  growing  out  of  the  previous  deliveries.*^ 
So,  too,  for  damages  not  arising  out  of  the  contract  of  the  par- 
ties, and  entirely  independent  of  their  respective  covenants  or 
agreements,  there  can  be  no  recoupment ;  thus  in  an  action  for 
rent  upon  a  lease  which  provided  for  the  landlord's  entering 
on  the  premises  to  make  repairs  during  the  term,  the  tenant 
cannot  recoup  damages  occasioned  by  negligent  and  tortious 
behavior  .of  the  landlord  and  his  servants  in  making  such  re- 
pairs.!^ Nor  can  there  be  any  recoupment  of  damages  sus- 
tained subsequent  to  the  commencement  of  the  suit.J^ 

Notice  Required  where  the  Defense  is  Partlil.  —  As  to  the 
way  in  which  the  defense  of  recoupment  is  to  be  set  up,  it  is 
now  settled  that  evidence  to  support  it,  if  total  and  going  to  the 
whole  action,  will  be  received  under  the  general  issue,  but  that 
where  it  is  only  partial  it  cannot  be  pleaded,  and  notice  must  be 
given  with  the  plea.  In  New  York  the  courts  hold  ''  notice  to 
be  an  essential  part  of  the  rule."  §  ^ 

*  Sevmour  v.  Davis,  2  Sandford  S.  C.  240.  §  The  Mayor  of  Albany  v.  Trowbridge,  5 
t  Cram  v.  Dresser,  2  Sandf.  S.  C.  120.  Hill,  71  ;  affirmed  in  Error,  7  Hill,  429  ;  Bat- 
t  Harger  v.  Edmonds,    4   Barb.  S.   C.  R.     terman  v.  Pierce,  3  Hill,  171  ;  Barber  v.  Rose, 

256.  5  Hill,  76  ;  Whitbcck  v.  Skinner,  7  Hill,  53  ; 

particular  cases  and  statutes,  that  this  limitation  is  almost  uniformly  adopted  in  them.  But  it 
IS  sometimes  otherwise  with  set-otfs  and  counter-claims ;  ante,  428,  note ;  post,  452,  note.  Titus 
V.  Hinn-od,  39  Barb.  (N.  Y.)  581. 

In  North  Carolina  the  old  rule  is  adhered  to,  and  where  actions  can  be  maintained  on  a  spe- 
cial contract,  the  defendant  cannot  reduce  the  damages  by  sliowing  the  unsoundness  of,  or  in- 
feriority of,  the  articles  purchased,  or  the  imperfection  of  the  work  done.  This  can  be  done 
only  when  the  jilaintitf  sues  on  a  quantum  meruit  or  quantum  valehat.  Hobbs  v.  Eiddick,  5 
Jones  (N.  C),  80  ;  McDugald  v.  McFadgin,  6  Jones  (N.  C),  89. 

1  As  recoupmcTit  is  permitted  only  to  avoid  circuity  of  action,  it  was  held  inequitable  in 
Massachusetts  to  allow  a  defendant  to  recoup  damages  on  account  of  a  misrepresentation  of 
one  of  several  plaintiffs  for  which  the  others  were  not  responsible.  And  in  an  action  for  freight 
brought  by  the  owners  of  a  vessel  of  whom  the  master  was  one,  the  consignee  was  not  allowed 
to  recoup  his  damages  for  the  non-delivery  of  goods  not  actually  shipped  but  which  the  master, 
without  other  authority  than  he  had  as  master,  had  improperly  receipted  for.  Sears  v.  Win- 
gate,  3  Allen,  103. 

•2  Where  under  a  parol  contract  for  the  future  delivery  of  a  fixed  quantity  of  goods,  at  such 
times,  and  in  such  parcels,  as  might  be  required,  separate  deliveries  are  made  and  settled  for 
as  furnished,  each  delivery  is  to  be  considered  as  in  its  nature  a  separate  and  distinct  contract  ; 
and  in  an  action  for  the  price  of  the  ])arcel  last  furnished,  the  buyer  cannot  recoup  for  his 
damages  growing  out  of  the  inferior  quality  of  the  goods  previously  delivered. 

Damages  cannot  be  recouped,  unless  they  arise  in  the  particular  contract  on  which  the  ac- 
tion is  founded.     Deming  v.  Kemj>,  4  Sandf.  K.  147. 

^  Nor  can  sureties  for  the  payment  of  rent,  in  an  action  against  them  for  the  rent,  recoup  or 
set  oft'  a  claim  to  damages  in  favor  of  their  principal,  although  it  would  have  been  a  defense  in 
a  suit  aoainst  the  principal  bv  the  landlord.     La  Faroe  r.  Halsev,  1  Bosw.  (N.  Y.)  171. 

*  Bartlett  v.  Holmes,  13  C.  B.  630  ;  17  Jur.  858 ;  S.  C.  20  Eng.  L.  &  E.  277. 

*  Not  so  in  Pennsylvania.     Deen  v.  Herrcld,  37  Penn.  150. 


506  SET-OFF    AND    RECOUPMENT.  [CH.    XVII. 

This,  too,  appears  decided  in  New  Hampshire  ;  *  and  in  most 
of  our  sister  States  the  general  rale  seems  to  be  settling  down  as 
in  New  York,  with,  however,  considerable  lluctuation.^ 

Rulings  in  United  States  Circuits.  —  On  the  Massachusetts 
circuit,  before  Story,  J.,  where  suit  f  was  brought  on  a  special 
contract  for  keeping  sheep  at  a  stipulated  price,  the  de- 
[445]  fendant  offered  to  prove  that  the  sheep  were  so  negli- 
gently kept  that  many  of  them  died.  The  court,  how- 
ever, refused  to  admit  it,  intimating  that  on  a  quantum  meruit 
the  rule  might  be  different,  but  that  on  a  specific  contract  the 
defendant  must  be  left  to  his  cross-action. 

But  on  the  same  circuit,  in  assumpsit  for  the  price  of  goods, 
the  defendant  was  allowed  to  prove  that  they  were  of  a  quality 
inferior  to  what  they  were  represented  to  be  at  the  sale.$ 

Supreme  Court  of  the  United  States.  —  The  Supreme  Court 
of  the  United  States  at  one  time  laid  down  the  restricted  rule.§ 
It  was  an  action  of  assumpsit  brought  to  recover  the  amount  of 
a  note  given  for  a  race-horse,  and  which  the  defendant  offered 
to  prove  was  unsound  at  the  time  of  sale.  The  judge  held  that 
the  evidence  was  inadmissible,  unless  the  plaintiff  at  the  time 
of  the  sale  knew  of  the  unsoundness,  or  in  other  words,  was 
guilty  of  fraud.  This  doctrine  was  held  correct,  and  the  court 
said  :  — 

"  The  result  of  the  cases  is  this  :  if  upon  sale  with  a  warranty,  or  if  by  the 
special  terms  of  the  contract,  the  vendee  is  at  liberty  to  return  the  article  sold, 
an  offer  to  return  it  is  equivalent  to  an  offer  accepted  by  the  vendor,  and  in  that 
case,  the  contract  is  rescinded  and  at  an  end,  which  is  a  sufficient  defense  to  an 
action  brought  by  the  vendor  for  the  purchase-money,  or  to  enable  the  vendee  to 
maintain  an  action  for  money  had  and  received  in  case  the  {>urchase-money  has 
been  paid.  The  consequences  are  the  same  where  the  sale  is  absolute  and  the 
vendor  afterwards  consents  unconditionally  to  take  back  the  property;  because  in 
botli,  the  contract  is  rescinded  by  the  agreement  of  the  parties,  and  the  vendee 
is  well  entitled  to  retain  the  purchase- money  in  the  one  case,  or  to  recover  it 
back  in  the  other.  But  if  tlie  sale  be  absolute,  and  there  be  no  subsequent  agree- 
ment or  consent  of  the  vendor  to  take  back  the  article,  the  contract  remains  open, 

Stearns  v.  Marsh,  4  Denio,  227  ;  McCiillough  t  Crowninshield  v.  Robinson,  1  Mason,  93 

V.  Cox,  6  Barbour,  S.  C.  R.  38;  Eldridgei;.  (1816). 

Mather,  2  Comstock  R.  157.  \  Millt-r  v.  Smith,  1  Mason,  437. 

*  Britton  v.  Turner,  6  N.  H.  R.  497  ;  ante,  §  Thornton  v.  Wynn,  12  Wheat.  183. 
230,  in  notis. 

1  See  on  the  necessity  of  notice,  Estep  v.  Morton,  6  Ind.  489  ;  Heaston  v.  Colgrove,  3  Ibid. 
265  ;  Stever  v.  Lamoure,  Hill  &  D.  Supp.  352  :  Wellsville  v.  Geisse,  3  Ohio  St.  333 ;  Stearns 
V.  Marsh,  4  Denio,  227. 


CH.    XVII.]  AMERICAN    RULE.  507 

and  the  vendee  is  put  to  liis  action  upon  the  warranty,  unless  it  be  proveil  that 
the  vendor  knew  of  the  unsoundness  of  the  article,  and  the  vejidee  tendered  a  re- 
turn of  it  within  a  reasonable  time." 

The  whole  subject  has,  however,  recently  been  examined  by 
the  same  hi_nh  tribunal  in  a  case  coniing  up  from  Alabama,  in 
which,  although  it  was  decideil  upon  the  local  law  of  that  State, 
the  reasonableness  of  the  American  doctrine,  "that  upon  the 
principles  of  justice  and  convenience  and  with  a  view  to  prevent 
litigation  and  expense,  where  fraud  has  occurred,  or  where 
there  has  been  a  failure  of  consideration,  total  or  partial,  [446] 
or  a  breach  of  warranty,  fraudulent  or  otherwise,  all  or 
any  of  these  facts  may  be  relied  on  in  defense  by  a  party  when 
sued  on  such  contract,  and  that  he  shall  not  be  driven  to  a 
cross  action,"  was  ably  and  elaborately  maintained.* 

Rule  Sanctioned  in  Massachusetts.  —  The  more  liberal  rule 
has  also  been  recently  adopted  in  Massachusetts.  So  in  an 
action  f  brought  by  a  factor  to  recover  against  his  jDrincipal,  the 
plaintiff's  negligence  in  selling  the  defendant's  goods  being  set 
up  by  way  of  diminution  of  damages,  the  previous  cases  were 
reviewed,  and  the  court  said,  "  The  question  for  a  time  may 
have  ranked  in  the  class  of  legal  uncertainties ;  but  it  appears 
to  us  at  present,  to  be  settled  on  reasonable  and  satisfactory 
principles."  t 

*  Withers  v.  Greene,  9  Howard,  214  ;  and  note  given  for  a  chaise  warranted  to  be  a./^V6•^ 

same  doctrine  athrnied  in  Van  Buren  v.  Dig-  rate  chaise,  the  defendant  offered   evidence  to 

ges,  11  Howard,  461.  show  that  there  were  defects  in  it,  and  con- 

t  Dodge  V.  Tileston,  12  Pick.  328.  tended  that  the  difference  between  the  amount 

X  And  to  this  tlie  courts  of  that  State  have  agreed  to  be  paid  for  the  chaise  and  what  the 

adlicrcd.     In  Harrington  v.  Stratton,  22  Picl^.  jury  shoukl  deem  its  true  vahie  at  the  time  of 

510,  in  an  action  on  a  promissory  note  given  the    sale,    was    the    amount   of    deduction    to 

on  an  excliange  of  horses,  the  defendant  offered  which  he  was  entitled.    But  the  judge  chai-ged 

to   prove   false  representations   made   by   the  that  if  there  were  defects  in  the  chaise  at  the 

plaintiff  in  reduction  of  damages;  and  the  Su-  time  of  the  sale,  the  defendant  was  entitled  to 

prcnie  Court  of  Massachusetts,  after  reviewing  have  so  much  deducted  from  the  note,  as  the 

the  P^nglish  and  American  cases,  particularly  chaise  was  worth  less  on  account  of  such  de- 

those  in  New  York,  at  length,  distinctly  dis-  fects  ;  and  this  was  held  right  on  exception, 

claimed  any  distinction  between  a  suit  brought  the   court    saying,  "There  was    no   question 

on  the   original  contract,  and  on  a  security  before  the  jury  as  to  the  actual  worth  of  the 

given  for  the  price ;  and  held  that  in  either  chaise,  no  question  whether  either  ])arty  had 

case  the  defendant  might  show  a  partial  tail-  made  a  good  or  bad  bargain."     Goodwin  v. 

ure  of  consideration,  to  reduce  the  damages ;  Morse,  9  Met.  278. 

but  tliat  notice  would  be  necessary  to  let  in  As  to  the  defense  of  a  judgment  recovered 

the  defense.  in  a  former  suit,  where  the  same  services  have 

And  again,  in  assumpsit  on  a  promissory  been   credited,   see   Briggs   v.   Richmond,    10 

note  for  an  ox,  it  was  held  by  the  same  court,  Pick.  .391.     In  Hunt  v.  The  Otis  Company,  4 

Perley  v.  Balch,  23  Pick.  284,  that  the  ]iur-  Met.  464,  where  a  plaintiff  had  entered  into  a 

chaser  might  avail  himself  of  a  partial  failure  manufoctory  with  knowledge   of  a  regulation 

of  consideration,  or  of  deceiition  in  the  quality  adopted  by  the  com))any,  requiring  all  persons 

or  value  of  the  chattel,  to  reduce  the  damages,  employed  by  them   to  give   them  four  weeks' 

and  was  not  obliged  to  resort  to  a  separate  ac-  notice  of  an  intention   to  quit  their  service, 

tion  for  the  deceit,  or  njion  the  warranty.     In  and  quitted  their  service  without  giving  such 

a  recent  case  in    the  same   State,  the  subject  notice,  he  was  held  liable,  in  a  suit  brought 

has  been  again  considered.     In  a  suit  on   a  against  them  for  his  wages,  for  all  damages 


508 


SET-OFF    AND    RECOUPMENT. 


[CH. 


XVII. 


[447]       Modern  English  Rule. —  In  England,  the  rule  adopted 


caused  by  his  not  giving  the  notice ;  and  in 
such  suit  the  amount  of  such  damages  may  be 
deducted  from  his  wages. 

In  Pennsylvania,  damages  arising  from  a 
breach  of  warranty  of  goods  sohl,  may  hn  set 
off  under  the  statute  of  that  State  in  an  action 
on  a  note  given  in  a  dijfmnt  transaction. 
Phillips  r.  Lawrence,  6  Watts  &  Serij.  150; 
Carman  v.  Franklin  Fire  Ins.  Co.  6  Watts  & 
Serg.  155.  Where  the  plaintiff  sold  land  to 
the  defendant  for  $.3,000,  and  took  bonds  for 
the  price  to  the  amount  of  $1,500  ;  at  the  time 
of  the  sale,  the  land  was  incumbered  by  judg- 
ments to  the  amount  of  $750.  Under  these 
judgments  the  land  was  sold,  and  the  defend- 
ant bought  it  in  for  this  sum.  The  plaintiff 
sued  on  the  bonds,  and  the  defendant  set  this 
up  as  a  total  failure  of  consideration.  But  it 
was  held  that  the  defendant  could  only  set  off 
or  deduct  the  amount  paid  by  him  on  the  in- 
cumbrances, and  that  the  plaintiff  was  entitled 
to  recover  the  balance.  McGinnis  v.  Noble,  7 
Watts  &  Serg.  454. 

In  Connecticut  the  rule  appears  unsettled. 
In  McAlpin  v.  Lee,  12  Conn.  129,  the  Su- 
preme Court  of  Connecticut  recognized  the 
doctrine  of  Reab  v.  M'Allister,  and  applied  it 
to  an  action  of  book  debt  brought  to  recover 
the  price  of  property  sold  under  a  special 
agreement,  which  proved  inferior  in  quality 
to  tluxt  contracted  for,  and  allowed  the  defend- 
ant in  the  assessment  of  damages  a  deduction 
of  the  agreed  price,  and  the  value  of  the  prop- 
erty sold,  the  court  saying  that  the  rule  was 
the  same  whether  the  action  was  for  goods 
sold  and  delivered,  or  upon  a  bill  or  note 
given  for  the  stipulated  price. 

But  in  Pidcifer  v.  Hotchkiss,  12  Conn.  2.35, 
in  an  action  on  a  note  given  for  a  patent,  the 
same  court  held  that  the  defendant  could  not 
show  that  the  plaintiff  had  made  false  repre- 
sentations in  regard  to  its  value,  and  that  the 
consideration  had  partially  failed,  but  that  he 
must  resort  to  his  action  on  the  warranty. ^ 
In  Delaware,  see  Di-aper  v.  Randolph,  4  Har. 
454. 

In  Alabama  the  Supreme  Court  has  recent- 
ly, in  a  very  learned  and  elaborate  opinion, 
adopted  the  doctrine  of  recoupment,  by  that 
name,  and  applied  it  to  the  case  of  a  ware- 
houseman who  had  advanced  on  cotton  depos- 
ited with  him.  In  an  action  brought  for  these 
advances,  it  was  held  competent  for  the  owner 
of  the  cotton  to  recoup  the  damages  sustained 
by  the  destruction  of  the  cotton  through  the 
plaintiff's  negligence.  Hatchett  v.  Gibson,  13 
Ala.  (N.  S.)  587.  See  also,  Robertson  v. 
Davenport,  27  Ala.  574. 

So  in  the  same  State,  if  an  overseer  em- 
ployed at  a  stipulated  price  per  anninn,  is  sick 
a  part  of  the  time  and  thus  unfitted  for  active 
service,  the  employer  may  recoup  the  damages 


sustained  by  the  imperfect  performance  of  the 
contract.  Jones  v.  Deyer,  16  Ala.  221  ;  Hun- 
ter ?'.  Waldron,  7  Ala.  753.  See  also,  McLane 
V.  Miller,  12  Ala.  643. 

So  in  Maine,  in  an  action  on  a  note  given 
for  the  good-will  of  a  business,  a  partial  failure 
of  consideration  (growing  out  of  the  fact  that 
the  plaintiff  had  returned  to  practice),  though 
unliquidated,  may  be  given  in  evidence  to 
mitigate  the  damages.  Herbert  v.  Ford,  29 
Maine,  546. 

In  Tennessee  the  doctrine  has  been  intro- 
duced to  but  a  limited  extent.  It  has  been  de- 
clared applicable  only  to  cases  where  a  special 
contract  has  been  partially  executed,  but  not 
according  to  its  terms.  Here  the  defendant 
is  liable  to  the  plaintiff,  not  on  the  special 
contract,  but  on  an  indehitatus  assumpsit,  for 
so  much  as  the  defendant  ma\'  be  found  liable 
ex  aquo  et  bono,  to  pay  for  the  partially  or  de- 
fectively executed  contract ;  and  in  such  case, 
in  order  to  ascertain  what  the  defendant  does, 
ex  cequo  et  bono,  really  owe,  he  shall  be  allowed 
by  way  of  recoupment  such  damages  as  he 
has  sustained  by  reason  of  the  non-perform- 
ance of  the  contract,  as  it  was  entered  into  by 
the  plaintiff,  and  which  he  could  recover  by  a 
cross-action.  Porter  v.  Woods,  3  Humphreys, 
60;  Crouch  v.  Miller,  5  Humphreys,  586.  But 
on  an  executed  contract,  as  in  debt  or  indebi- 
tatus assumpsit,  for  the  price  of  a  slave  sold 
and  delivered,  the  defendant  cannot  recoup 
the  damages  accruing  by  reason  of  a  breach 
of  warranty.  Henning  v.  Van  Hook,  8  Hum- 
phreys, 678.  So  where  an  engineer  sues  for 
his  stipulated  salary,  damages  sustained  by  his 
employer  by  reason  of  his  unskillfid  pertbrm- 
ancc  of  his  duties,  cannot  be  set  off.  N.  & 
K.  Turnpike  Co.  v.  Harris,  8  Humph.  558 ; 
and  see  also,  Allen  v.  McNew,  8  Humphreys, 
46.2 

In  Mississippi,  fraud  in  the  sale  of  a  slave 
ma}'  be  proved  in  an  action  on  the  note  given 
for  the  purchase-money,  under  the  plea  of  non- 
assumpsit.  Simmons  v.  Cutreer,  12  Smedes 
&  M.  584. 

In  Kentucky,  also,  it  has  been  held  that  in 
an  action  brought  on  the  contract  for  the  price 
of  goods  sold,  the  defendant  may  give  in  evi- 
dence the  breach  of  any  warranty,  or  any 
fraudulent  representation  in  the  sale,  and  thus 
recoup  the  damages  he  has  sustained.  Culver 
V.  Blake,  6  B.  Monroe,  528. 

In  Wisconsin  it  has  been  held  by  the  Su- 
preme Court,  in  accordance  with  the  decisions 
in  New  York,  that  "  matters  in  diminution  of 
the  plaintiff's  demand,  arising  out  of  the 
same  transaction  and  not  technically  an  off- 
set," can  be  set  off  by  way  of  recoupment, 
provided  notice  be  given  with  the  plea.  Nor- 
ton V.  Rooker,  Wisconsin  Reports,  by  T.  P. 
Burnett,  1844,  33, 


1  See  also,  Stacy  v.  Kemp,  97  Mass.  166.     The  rule  in  McAIpin  v.  Lee,  supra,  is  now  settled 
law  in  this  State.     Kellogg  v.  Denslow,  14  Conn.  411  ;  Hitchcock  v.  Hunt,  28  Conn.  343. 

2  But  in  Overton  v.  Phelan,  2  Head  (Tenn.),  445,  the  Supreme  Court  say  :  "  It  is  well  .settled 


CH.    XVII.]  MODERN    ENGLISH    RULE.  509 

in  this  country  has  been  but  partially  recognized.*  In 
an  action  of  assumpsit  for  goods  sold,  brought  to  recover  [448] 
the  price  of  some  cinq  foin  seed,  warranted  by  the  plain- 
tiff' to  be  good,  new-growing  seed,  it  was  held  competent  for 
the  defendant  to  show  that  it  did  not  correspond  with  the  war- 
ranty. The  plea  was  the  general  issue  without  notice,  but  the 
defense  went  to  the  whole  action.^  And  in  assumpsit!  for  a 
horse  sold,  the  plaintiff  having  warranted  him,  it  was  held  that 
the  defendant  had  a  right  to  give  the  breach  of  warranty  in  evi- 
dence, in  reduction  of  damages.  Again,$  where  the  M'ork  Avas 
imperfectly  done,  for  an  agreed  sum,  Vaughan,  B.,  said,  "  I  think 
the  rule  that  there  should  be  an  abatement  of  price  for  the  non- 
performance of  any  part  of  the  contract  by  the  plaintiff,  is  a 
convenient  rule." 

But,  in  other  cases,  the  rule  has  not  been  adhered  to.§  It 
has  been  held,  indeed,  that  an  attorney  cannot  recover  against 
his  client  for  work  which  was  useless  towards  accomplishing  the 
object  which  the  client  had  in  view.||  But  in  a  recent  case,][ 
the  rule  of  Templar  v.  M'Lachlan,  above  cited,**  was  reaffirmed; 
and  it  was  held  that  if  the  work  was  only  partly  useless,  the 
client's  remedy  is  by  a  cross-action.  It  is  worthy  of  remark, 
however,  that  in  none  of  these  cases  is  the  term  recoupment 
applied  to  a  defense  growing  out  of  the  defendant's  counter- 
claim. It  is  uniformly  restricted  in  England,  I  believe,  to 
that  limitation  of  the  plaintiff's  demtmd  which  shows  that  [449] 
he  has  really  not  suffered  the  loss  which  he  alleges. 

In  a  recent  case  in  the  English  Exchequer,!!  the  whole  subject 
was  considered  by  that  court.  The  suit  was  special  assumpsit 
on  a  contract  to  build  a  ship  for  the  plaintiff  according  to  cer- 
tain specifications ;  and  the  breach  charged,  that  the  work  was 

*  Ponlton   V.  Lattimore,  9   Barn.  &  Cres.         ||  See   also,  Bracey  v.  Carter,  12  Adol.  & 

259  (18i!9).  Ellis,  373,  where  the  same  prmcijjle  was  recoy- 

t  Street  v.  Blay,  2  B.  &  Adol.  456  (1831).  nized. 

\  Allen  V.  Cameron,  3   Tyr.  907,   1   Cr.  &        H  Shaw  v.  Arden,  9  Bing.  287. 
Mees.  832  (1833).  **  Anle,  434. 

§  Hill  V.  Featherstonhangh,  7  Bing.  569,  tt  Mondcl  v.  Steel,  8  M.  &  W.  858. 

upon  common  law  principles,  that  when  the  defendant  has  sustained  damages  by  reason  of  the 
plaintiif 's  non-performance  of  his  part  of  the  agreement  sued  on,  such  defendant  has  the  right 
to  al)ate  the  plaintiff's  verdict,  and  recovery,  by  the  amount  of  ...  .  the  damages  which  he 
would  be  entitled  to  recover  in  a  cross-action  by  him  against  the  plaintiff  for  the  non-perform- 
ance of  his  portion  of  the  agreement." 

In  Illinois  recoupment  is  allowed  in  cases  of  contracts  to  furnish  an  article  of  a  special 
character,  which  turns  out  unfit  for  the  use  for  which  it  was  designed.  Mears  v.  Nichols,  41 
111.  207. 

1  See  ante,  293,  note.  For  a  more  restricted  measure  of  damages  in  such  a  case,  however, 
than  the  rule  there  stated,  see  Ferris  v.  Comstock,  33  Conn.  513,  where  the  damages  for  the 
breach  of  the  warranty  were  held  to  be  the  cost  of  the  seed  and  the  value  of  the  labor  in 
preparing  the  ground  for  it  (less  the  general  benefit  to  the  land  from  such  labor),  to  which  was 
to  be  added  the  value  of  the  labor  in  jilanting  it,  with  interest  on  the  several  amounts. 


510  SET-OFF   AND    RECOUPMENT.  [CH.    XVII. 

insufficiently  done,  by  reason  of  which  the  plaintiff  had  been 
obliged  to  re-fjisten  and  repair  her.  The  defendant  pleaded  a 
former  suit  brought  by  himself  for  the  contract  price,  in  which 
the  now  plaintift'  gave  evidence  of  the  same  breach  of  contract 
as  that  alleged  in  the  present  declaration ;  and  averred  that  the 
jury  deducted  the  compensation  due  the  now  plaintiff  in  that 
suit.  The  plea  was  held  bad,  substantially  on  the- ground  that 
in  the  former  action  the  plaintiff  could  only  have  been  allowed 
a  deduction  of  damages  from  the  agreed  price  so  far  as  the  ship 
fell  short  of  the  contract  at  the  time  of  delivery,  and  not  for 
subsequent  repairs.     Parke,  B.,  said, — 

"  The  ground  on  which  it  was  endeavored  to  support  the  i)lea,  in  a  very  in- 
genious argument,  Avas  this :  That  a  defendant  in  an  action  for  the  stipulated 
price  of  a  chattel,  which  the  plaintiff  had  contracted  to  make  for  the  defendant 
of  a  particular  quality,  or  of  a  specific  chattel  sold  with  a  warranty,  and  delivered, 
had  the  option  of  setting  up  a  counter-claim,  for  breach  of  the  contract  in  the  one 
instance  or  the  warranty  in  the  othei*,  in  the  nature  of  a  cross-aclion ;  and  that  if 
he  exercised  that  option,  he  was  in  the  same  situation  as  if  he  had  brought  such 
an  action^and  consequently  could  not  after  judgment  in  one  action  bring  another  ; 
and  the  case  was  likened  to  a  set-off  under  the  statutes.  This  argument  was 
founded  on  no  other  authority  than  an  expression  of  Lord  Tenterden,  in  giving 
the  judgment  of  the  court  in  the  case  of  Street  v.  Blay  ;  his  Lordship  having  said 
that  a  breach  of  warranty  might  be  given  in  evidence  in  an  action  for  the  price 
of  a  specific  article  sold,  in  mitigation  of  damages  '  on  the  principle,  it  should 
seem,  of  avoiding  circuity  of  action.'  But  we  are  all  of  opinion  that  no  such  in- 
ference is  to  be  drawn  from  that  expression.  What  was  meant  was,  that  the 
sum  to  be  recovered  for  the  price  of  the  article  might  be  reduced  by  so  much  as 
the  article  was  diminislied  in  value  by  reason  of  the  non-compliance  with  the 
warranty ;  and  that  this  abatement  was  allowed  in  order  to  save  the  necessity  of 
a  cross-action.  Formerly,  it  was  the  [jractice  where  an  action  was  brought  for 
an  agreed  price  of  a  specific  chattel  sold  with  a  warranty,  or  of  work  which  was 
to  be  performed  according  to  contract,  to  allow  the  plaintiff  to  recover  the  stipu- 
lated sum,  leaving  the  defendant  to  a  cross -action  for  breach  of  the  warranty  or 
contract;  in  which  action,  as  well  as  the  difference  between  the  price  contracted 

for  and  the  real  value  of  the  articles,  or  of  the  work  done,  as  any  con- 
r4501   sequential  damage,   might   have   been  recovered;   and   this  course   was 

simple  and  consistent.  In  the  one  case,  the  performance  of  the  warranty 
not  being  a  condition  precedent  to  the  payment  of  the  price,  the  defendant,  who 
received  the  chattels  warranted,  has  thereby  the  property  vested  in  him  inde- 
feasibly,  and  is  incapable  of  returning  it  back ;  he  has  all  that  he  stipulates  for 
as  the  condition  of  paying  the  price,  and  therefore  it  was  held  that  he  ought  to 
pay  it,  and  seek  his  remedy  on  the  plaintiffs  contract  of  warranty.  Li  the  other 
case,  the  law  appears  to  have  construed  the  contract  as  not  importing  that  the 
performance  of  every  portion  of  the  work  should  be  a  condition  precedent  to  the 


CII.    XVII.]  MODERN   ENGLISH   RULE.  511 

payment  of  the  stipulated  price,  otherwise  the  least  deviation  would  have  deprived 
the  plaintiff  of  the  wliole  [>rice  ;  and  therefore  the  defendant  was  ohliged  to  pay 
it,  and  recover  for  any  breach  of  contract  on  the  other  side.  But  after  the  case 
of  Basten  v.  Butter,  a  different  practice,  whicli  iiad  been  partially  adopted  before 
in  the  case  of  King  v.  Boston,  began  to  prevail,  and  being  attended  with  much 
practical  convenienct.',  lias  been  since  generally  followed ;  and  the  defendant  is 
now  permitted  to  show  that  the  chattel  by  reason  of  the  non-compliance  with  the 
warranty  in  the  one  case,  and  the  work  in  consequence  of  the  non-performance 
of  the  contract  in  the  other,  were  diminished  in  value.  (Kist  v.  Atkinson.  Thorn- 
ton V.  Place,  etc.)  The  same  practice  has  not,  however,  extended  to  all  cases  of 
work  and  labor,  as  for  instance  that  of  an  attorney  (Templar  v.  M'Lachlan), 
unless  no  benefit  whatever  has  been  derived  from  it;  nor  in  actions  for  freight 
(Sheels  V.  Davies).  It  is  not  so  easy  to  reconcile  these  deviations  from  the  an- 
cient practice  with  principle  in  those  particular  cases  above  mentioned,  as  it  is  in 
those  where  an  executory  contract,  such  as  this,  is  made  for  a  chattel  to  be  manu- 
factured in  a  particular  manner,  or  goods  to  be  delivered  according  to  a  samjjie 
(Germaine  i'.  Burton),  where  the  party  may  refuse  to  receive,  or  may  return  in 
a  reasonable  time,  if  the  article  is  not  such  as  bargained  for  ;  for  in  these  cases 
the  acceptance,  or  non-return,  affords  evidence  of  a  new  contract  on  a  quantum 
valebat ;  whereas,  in  a  case  of  a  delivery  with  a  warranty  of  a  specific  chattel 
there  is  no  power  of  returning,  and  consequently  no  ground  to  imply  a  new 
contract ;  and  in  some  cases  of  work  performed  there  is  difficulty  in  finding  a 
reason  for  such  presumption.  It  must,  however,  be  considered  that  in  all  these 
cases,  of  goods  sold  and  delivered  with  a  warranty,  and  work  and  labor,  as  well 
as  the  case  of  goods  agreed  to  be  supjilied  according  to  contract,  the  rule  which 
has  been  found  so  convenient  is  established;  and  that  it  is  competent  for  the  de- 
fendant, in  all  of  those,  not  to  set  off  by  a  proceeding  in  the  nature  of  a  cross- 
action,  the  amount  of  damages  which  he  has  sustained  by  breach  of  the  contract, 
but  simply  to  defend  himself  by  showing  how  much  less  the  subject-matter  of  the 
action  was  worth,  by  reason  of  the  breach  of  contract :  and  to  the  extent  that  he 
obtains,  or  is  capable  of  obtaining,  an  abatement  of  price  on  that  account,  he  must 
be  considered  as  having  received  satisfaction  for  the  breach  of  contract,  and  is 
precluded  from  recovering  in  another  action  to  that  extent,  but  no  more. 

"  The  opinion,  therefore,  attributed  on  this  record  to  the  learned  judge,  is,  we 
think,  incorrect  and  not  warranted  by  law  ;  and  all  the  plaintiff  could  by  law  be 
allowed  in  diminution  of  damages  on  the  former  trial,  was  a  deduction 
from  the  agreed  price,  according  to  the  difference  of  the  time  of  delivery  r4511 
between  the  ship  as  she  was,  and  what  she  ought  to  have  been  according 
to  the  contract ;  but  all  claims  for  damages  beyond  that,  on  account  of  the  subse- 
quent necessity  for  more  extensive  repairs,  could  not  have  been  allowed  in  the 
former  action,  and  may  now  be  recovered."  * 

*  For  other  English  cases,  see  Leggett  v.  Camp.   119;  Caswell  v.  Coare,  96,  1    Taunt. 

Cooper,  2    Stark.    103  ;    Kist   v.   Atkinson,   2  566  ;  2  Ibid.  107  ;  Montrion  v.  Jeffervs,  2  Car. 

Camp.  6;i;  Okell  r.  Smith,  1  Stark.  1U7  (86);  &   P.   113;    Hamond  r.   Holiday,   l"  C.  &  P. 

White  V.  Chapman,  Ibid.  113  (91) ;  Denew  v.  384  ;  Bamford  v.  Harris,  1  Stark.  384 
Davirell,  3   Camp.  451  ;    Sheels  v.  Davies,  4 


512  8ET-0FF   AND    RECOUPMENT.  [cH.    XVII. 

Frhgiit.  —  A  question  analogous  to  those  which  we  have 
been  considering  is  presented  in  the  case  of  contiicting  claims 
for  freight,  and  for  damages  resulting  from  bad  stowage  or  other 
negligence  of  the  carrier.  In  England  the  rule  is,  that  the  con- 
signee who  has  received  the  goods  must  pay  the  freight  without 
deduction  and  resort  to  his  cross-action  for  the  damage.*^  But 
the  inclination  of  judicial  opinion  in  this  country  seems  to  be  to 
allow  the  injury  done  by  the  negligence  of  the  carrier  to  be  set 
off  as  an  answer  ;jro  tanto,  to  his  claim  for  compensation.  It  has 
been  so  decided  in  Illinois  and  Pennsylvania.!  So,  also,  the  con- 
signee of  property  a  part  of  which  is  not  delivered,  may  recoup 
the  damage  so  sustained  in  an  action  against  him  for  the 
freight.!  The  same  principle  has  been  applied  to  the  case  of 
an  agreement  to  load  a  vessel  with  a  stipulated  freight,  where 
the  defendant  failed  to  comply  with  his  contract,  but  third  per- 
sons offered  to  make  up  the  deficiency.  Here  it  was  held  that 
the  master  was  bound  to  accept  the  offer  of  such  third  persons, 
and  that  the  defendant  was  entitled  to  recoup  the  freight 
-moneys  that  they  would  have  paid.§  ^ 

Torts.  —  Nor  is  the  doctrine  of  recoupment  confined  exclu- 
sively to  cases  of  contract.  It  is  often  applied  in  cases  of  tort. 
Thus,  it  has  been  held  applicable,  in  New  York,  to  a  lien  for 
freight,  where  the  goods  were  sued  for  in  trover.|| 

*  Davidson  v.  Gwynne,  12  East,  381  ;  Sheds  \  Hinsdell  v.  Weed,  5  Denio,  172. 

V.  Davics,  4  Camp.  119  ;  and  S.  C  6  Taunt.  §  Hccksher  v.  M'Crea,  24  Wend.  304;  ante, 

65.     And  see  Abbott  on  Shipping,  part  iv.  eh.  361,  and  also  430.     And  see,  to  same  point, 

ix.  p.  428.  Costigan  v.  Mohawk  &  H.  R.  R.  2  Denio,  610. 

t  Edwards    v.    Todd,   1     Scammon,    463  ;  ||  Everett  v.  Saltus,  20  Wend.  267  and  273. 
Leech  v.  Baldwin,  5  Watts,  446 ;  Humphrey 
V.  Reed,  6  Wharton,  435. 

1  Meyer  v.  Dresser,  33  L.  J.  (N.  S.)  C.  P.  289.  And  it  is  there  held  that  neither  a  usage 
prevailing  all  over  the  world  giving  the  consignee  the  right  to  deduct  from  the  freight  the 
value  of  the  missing  goods,  nor  the  law  of  the  country  of  the  consignee's  domicil  giving  him 
such  right  (which  being  a  matter  of  set-otf  not  amounting  to  an  extinguishment  of  the  claim 
is  therefore  governed  by  the  lex  fori),  applies  to  an  action  brought  in  England  for  the  freight. 
Ibid. 

2  In  an  action  brought  by  a  warehouseman  who  has  received  goods  from  a  common  carrier 
on  store  for  the  owner,  and  has  advanced  to  the  carrier  his  charges  for  transportation,  to 
recover  the  amount  of  his  advances  from  the  owner,  the  defendant  cannot  recoup  damages  for 
injuries  received  by  the  goods  while  in  the  carrier's  hands,  if  such  injuries  were  not  apparent 
nor  known  to  the  warehouseman.  The  owntr  must  look  to  the  carrier  for  such  damages. 
Sage  V.  Gittner,  11  Barb.  (N.  Y.)  120. 

But  in  an  action  by  a  carrier  for  his  freight,  damages  for  injury  to  the  goods,  for  which  the 
carrier  is  liable,  may  be  recoupeS.     Boggs  v.  Martin,  13  B.  Monr.  (Ky.)  239. 

In  Illinois,  a  claim  originating  in  contract,  may  be  set  up,  by  way  of  recoupment,  against 
one  founded  in  tort,  if  the  counter-claims  arise  out  of  the  same  subject-matter,  and  are  sus- 
ceptible of  adjustment  in  one  action.  But  the  defendant  cannot,  as  in  set-ofF,  recover  any  ex- 
cess in  his  favor.  His  claim  is  used  in  mitigation  of  damages  only.  Stow  v.  Yarwood,  14 
111.  424. 

In  Missouri,  a  set-ofF  is  not  admissible,  where  the  claim  on  either  side  is  for  mitigated  dam- 
ages. Johnson  v.  Jones,  16  Mo.  494;  Mahan  v.  Ross,  18  Ibid.  121  ;  Pratt  v.  Menkius,  Ibid. 
158;  Brake  v.  Corning,  19  Mo.  125. 


CII.    XVII.]  PAYMENTS    AFTER    SUIT.  513 

Payment  not  Pleaded.  —  A  question  very  analogous  to  this 
is,  how  far  evidence  of  payments  when  not  pleaded,  or 
when  made  after  the  commencement  of  the  suit,  is  admis-  [452] 
sible  in  the  reduction  of  damages;^  and  the  more  reason- 
able rule  in  the  latter  case  would  seem  to  be,  that  in  such  case 
proof  of  the  payment  is  admissible  to  show  that  the  plaintiff  has 
not  sustained  the  entire  injury  for  which  he  claims  compensa- 
tion.* 

Payments  after  Suit.  —  It  is  well  settled,  however,  that  after 
an  action  is  brought  and  costs  incurred,  the  defendant  cannot 
bar  the  plaintiffs  suit  by  paying  the  debt  merely,  without  also 
paying  the  costs.  And  where  such  payment  is  made,  the  plain- 
tiff will  generally  be  entitled,  if  the  costs  are  not  paid,  to  take 
judgment  for  nominal  damages  and  his  costs.f  But  if  the  -pay- 
ment  is  made  in  satisfaction  of  the  debt,  damages,  and  costs, 
then  the  verdict  will  be  for  the  defendant.t  A  plea  of  payment 
into  court  in  full  satisfaction  of  all  the  causes  of  action  in  the 
declaration  contained  is  good,  being  an  answer  to  the  damages 
as  well  as  the  debt.§  But  a  plea  of  payment  into  court  in  debt, 
stating  that  the  defendant  never  was  indebted  to  the  plaintiff  to 
a  greater  amount  than  the  sum  paid  into  court,  is  bad,  as  not 
answering  the  damage  for  the  detention  of  the  debt.|| 

Wisdom  of  the  Doctrine.  —  I  cannot  omit  here  to  say,  that 
the  doctrine  of  recoupment  as  generally  adopted  in  the  United 
States,  appears  to  me  settled  on  just  and  philosophical  princi- 
ples, while  at  the  same  time  there  is  no  doubt  that  it  works  a 
serious  innovation  in  the  ancient  rules  which  seek  to  produce 
singleness  of  issues.  Those  rules  are,  however,  so  far  modified 
by  the  practice  of  double  pleading,  set-off,  and  lastly,  of  recoup- 
ment, that  it  becomes  a  grave  question  whether  they  are  now 
of  any  very  considerable  practical  value ;  and  it  is  at  least  quite 
doubtful  whether  the  forms  of  action  are  of  any  great  utility,  so 

*  Shirly  V.   Jacobs,   2  Bing.    (N.  C.)    88 ;  t  Belknap  v.  Godfrey,  22  Verm.  288. 

Lediard  v.  Boucher,  7  Car.  &  Payne,  1 ;  Rich-  J  Thame  v.  Boast,  12  Q.  B.  R.  808. 

ardson   v.  Robertson,   1   Mecs.  &  Wels.  463.  §  Triston  w.  Barrington,  16  M.  &  W.  61. 

Vide  ante,  110.  II  Lowe  v.  Steele,  15  M.  &  W.  380. 

1  In  an  action  on  a  note,  a  payment  made  on  the  note  after  suit  brought,  may  be  given  in 
evidence  to  reduce  the  damages.  Bischof  v.  Lucas,  6  Ind.  R.  26.  In  New  Hampshire,  it  is 
held  that  on  tlie  general  issue  evidence  of  payment  since  suit  brought  may  be  given  iu  mitiga- 
tion. And  in  such  cases,  it  seems  that  the  court  has  a  discretion  as  to  costs.  Dana  v.  Ses- 
sions, 46  N.  H.  509.  This  goes  directly  counter  to  the  old  principle,  laid  down  in  the  text, 
p.  122. 

33 


514  SET-OFF    AND    RECOUPMENT.  [CH.    XVII. 

far  as  they  are  supposed,  or  were  originally  intended,  to  produce 
a  single  issue.^ 

1  The  disposition  to  adjust  all  controversies  between  the  same  parties  in  one  suit  at  law  as  well 
as  in  equity,  so  obviously  increasing  of  late  years  in  the  United  States,  has  resulted  in  New  York 
in  the  lej^al  sanction  in  the  Code  of  Procedure  as  a  part  of  the  defendant's  answer  of  "  coun- 
ter claims  "  (Code  of  Procedure,  §  149),  which  are  thus  defined  (§  150)  :  — 

The  counter-claim  must  be  one  cxistinu'  in  favor  of  a  defendant  and  against  a  plaintiff  be- 
tween whom  a  several  judgment  might  be  had  in  the  action  and  arising  out  of  one  of  the  fol- 
lowing causes  of  action  :  — 

1.  A  cause  of  action  arising  out  of  the  contract  or  transaction  set  forth  in  the  complaint  as 
the  foundation  of  the  plaintiti"'s  claim  or  connected  with  the  subject  of  the  action. 

2.  In  an  action  arising  on  contract,  any  other  cause  of  action  arising  also  on  contract  and 
existing  at  the  commencement  of  the  action. 

The  defendant  may  set  forth  by  answer  as  many  defenses  and  counter-claims  as  he  may  have, 
whether  tlicy  be  such  as  have  been  heretofore  denominated  legal  or  equitable,  or  both.  See 
Peck  V.  Brown,  2  Robertson,  119. 

These  enactments  have  been  substantially  repeated  in  most  of  the  other  States  which  have 
adopted  codes  of  practice  {vide  p.  41,  head  p.  38,  n.  1),  and  under  the  provisions  of  law  and 
rules  of  court  requiring  the  different  counter-claims  to  be  separately  and  clearly  stated,  it  is 
believed  that  the  avoidance  of  circuity  and  variety  of  action  has  been  found  to  more  than  coun- 
terbalance the  advantage  which  lawyers  have  so  long  attached  to  the  logical  simplicity  of 
issues  which  was  the  aim  of  the  common  law  practice. 

The  principle,  however,  of  allowing  as  an  off-set  to  a  claim  on  one  contract,  damages  for 
breach  of  another  contract,  is  not  uniformly  inti'oduced  into  the  codes  of  practice.  In  Ohio, 
such  a  counter-claim  is  not  allowed.  Loomis  v.  The  Eagle  Bank,  10  Ohio  St.  327.  And  in 
New  York,  a  breach  of  a  contract  with  the  plaintiff's  assignor  other  than  that  sued  on,  cannot  be 
allowed  as  a  counter-claim,  although  in  some  cases  it  might  come  within  the  statute  of  set-off. 
Mcllvaine  v.  Egerton,  2  Robertson  (Superior  Court,  N.  Y.),  422.  See  ante,  41,  note  1.  In 
Maryland,  in  an  action  of  trover  by  the  trustee  of  an  insolvent,  it  was  held  that  defendant 
might  show,  for  the  purpose  of  recouping,  that  the  property  in  question  came  into  his  hands  as 
security  for  a  debt  owed  him  by  the  insolvent.    Dowler  v.  .Cushwa,  27  Md.  354. 


CHAPTER  XVIII. 

THE   RULE    OF   DAMAGES    IN   ACTIONS   FOR   TORTS    GENERALLY. 

Forms  of  Action  prescribed  for  "Wrongs.  —  Trover.  —  Case.  —  Trespass.  —  Re- 
plevin. —  Unlei=s  Aggravation  is  proved,  the  Measure  of  Damages  in  Actions 
of  Tort  is  Matter  of  Law.  —  Where  Aggravation  is  shown,  the  Jury  have  a 
Discretion  to  give  Exemplary  or  Vindictive  Damages  beyond  Compensation  for 
Actual  Loss.  —  All  the  attendant  Circumstances  may  be  proved.  —  Rule 
where  both  Plaintiff  and  Defendant  are  in  fault.  —  In  Collision.  —  In  Cases  of 
Felony. 

Having  thus  disposed  of  the  subject  of  contracts,  we  j)roceed 
now  to  the  consideration  of  wrongs.  The  technical  forms  pre- 
scribed by  the  EngUsh  law  for  the  redress  of  wrongs,  or  as  they 
are  termed,  actions  ex  delicto,  are  trover,  case,  trespass,  replevin, 
and  detinue.*  ^ 

Arbitrary  Division  of  Actions. — The  divisions  of  our  system 
in  this  respect  are  arbitrary ;  for,  as  we  have  already  had  occa- 
sion to  notice,!  there  are  many  actions  nominally  in  tort,  which, 
in  respect  to  the  measure  of  relief,  are  treated  as  virtually  ac- 
tions ex  contractu  ;  and  in  these  cases  a  fixed  rule  of  damages  is 
adhered  to.^  So  in  an  action  of  trespass  without  any  circum- 
stances of  aggravation,  the  Supreme  Court  of  the  United  States 
said  that,  the  case  not  being  one  which  called  for  vindictive  or 
exemplary  damages,  the  plaintiff  was  only  entitled  to  recover 
for  his  actual  injury.^^     So,  there  are  many  cases  of  tort  where 

*  The  old  action  of  detinue  is  of  compai'a-  Grotius  treats  only  of  Damnum,  under  this 

tively  rare   occurrence,  and  in  New  York  is  head  of  Maletieium.     De   Jur.  Bell,  et   Pac. 

abolished  by  statute.  lib.  ii.  cap.  17  ;  vide,  also,  ante,  10. 

Grotius  thus  begins  his  chapter  :  DeDamno.  t  Ante,  335  and  355. 

Supra  diximus  ejus  quod  nobis  debetur  fontes  j  Conai'd  v.   The  Pacific  Ins.  Co.  6  Peters, 

esse   tres  ;    pactioneni  —  maleficium  —  legem.  262,  282.     See   also.  Bell   v.  Cunningham,  3 

De   pactionibus   satis   tractatum.     Veniaraus  Peters,  69 ;  Tracy  v.   Swartwout,  10  Peters, 

ad  id  quod  ex  maleficio  naturaliter  debetur. —  81,  95. 
Lib.  ii.  cap.  17,  §  1,  De  Jure  Belli  et  Pads. 

1  As  to  the  damages  which  may  be  awarded  to  a  party  injured  by  an  act  committed  in  con- 
tempt of  court,  in  proceedings  to  punish  for  the  contempt,  see  the  People  v.  Compton,  1  Duer 
(N.  Y.),  512. 

^See  Walrath  v.  Redfield,  18  N.  Y.  457;  Moody  r.  McDonald,  4  Cal.  297;  Nickerson  u, 
Harriman,  38  Maine,  277. 

8  Where  the  action  is  brought  to  recover  the  damages  already  sustained  by  a  trespass,  the 


516  ACTIONS   FOR    TORTS.  [CH.    XVIII. 

no  question  of  fraud,  malice,  or  oppression  intervenes  ;  and  in 
those  cases  the  measure  of  compensation  is  matter  of 
[454]  law.-^  So  the  Supreme  Court  of  New  Jersey  says,  in  an 
action  of  trespass  quarc  clausum  f regit,  "In  actions  of  tres- 
pass, where  the  plaintiff  complains  of  no  injury  to  his  person  or 
feelings ;  where  no  mahce  is  shown  ;  where  no  right  is  involved 
beyond  a  mere  question  of  property ;  where  there  is  a  clear 
standard  for  the  measure  of  damages,  and  no  difficulty  in  apply- 
ing it,  —  the  measure  of  damages  is  a  question  of  law,  and  is 
necessarily  under  the  control  of  the  court  *  And  so  again  in 
North  Carolina,  in  an  action  of  trespass  for  destroying  a  build- 
ing by  fire,  the  jury  at  Nisi  Prius  were  directed  that  the  measure 
of  damages  was  not  the  value  of  the  building,  but  the  amount  it 
would  have  taken  to  rebuild  it  if  destroyed.  But  this,  on  re- 
view, was  held  wrong ;  and  the  court  said,  "  The  proper  measure 
in  actions  of  this  kind  is  the  real  value  of  the  property  de- 
stroyed, unless  the  trespass  is  committed  wantonly  or  mali- 
ciously, when  the  jury  may,  if  they  think  proper,  give  vindictive 
damages.^  But  whether  they  should  have  been  given  or  not 
was  a  question  which  ought  to  have  been  submitted  with  proper 
instructions  to  the  jury."t^  But,  on  the  other  hand,  where  cir- 
cumstances of  aggravation  are  made  apparent,  where  the  motive 
of  the  defendant  is  grossly  fraudulent,  malicious,  or  oppressive, 
the  amount  of  relief  is  left  largely  to  the  discretion  of  the  jury. 

*  Berry  v.  Vreeland,  1  Zabriskie's  N.  J.  R.         t  Wylie  v.  Smithcrman,  8  Iredell,  236. 
183. 


fundamental  rule  is  that  actual  compensation  is  given  for  actual  loss  only,  as  in  the  case  of 
contracts  {ante,  200,  304).  Thus  in  an  action  for  false  imprisonment,  where  the  plaintiff 
claimed  as  special  damage  the  costs  of  an  attorney  employed  by  him,  and  the  proof  showed  he 
had  employed  the  attorney  but  not  paid  his  bill ;  it  was  held  the  damage  was  not  proved. 
Pritchet  w.  Boevey,  1  C.  &  M.  775.  So  in  an  action  of  assault  and  battery,  expenses  incnrred 
only  and  not  paid  are  not  recoverable.  Ward  v.  Haws,  5  Minn.  440.  Bee  Witsell  v.  Riggs, 
14  S.  C.  Law  (Rich.),  186;  Jones  v.  Lewis,  9  Dowl.  143. 

1  This  still  leaves  to  be  defined  what  is  included  in  the  "  actual  injury."  Sec  post,  ch.  xxii. ; 
and  as  to  the  damages  for  personal  injuries  see  p.  550,  note.  See  also,  the  observations  of  Mr. 
Justice  Strong,  in  delivering  the  opinion  of  the  Supreme  Court  of  Pennsvlvania,  in  Heil  v. 
Glanding,  42  Penn.  493  ;  Jefcoat  v.  Knotts,  13  Rich.  (S.  C.)  L.  R.  50 ;  11  Rich.  (S.  C.)  L.  R. 
649 ;  Ives  v.  Humphreys,  1  E.  D.  S.  (N.  Y.)  196 ;  Shannon  v.  Burr,  1  Hilt.  (N.  Y.)  39 ;  Grier 
V.  Ward,  23  Geo.  145. 

In  Massachusetts,  in  two  actions  for  injuries  to  horses  by  the  improper  construction  of  a 
railroad  track,  it  was  held  that  tlie  plaintiffs  were  entitled  to  recover  the  diminution  in  the 
mai'ket  value  of  the  horses  occasioned  by  the  injury,  and  in  addition  such  sums  as  the  plain- 
tiffs had  paid  out  in  reasonable  attempts  to  cure  them,  with  a  reasonable  compensation"  for 
their  own  sei-vices  in  attempting  to  cure  them,  and  for  the  loss  of  the  use  of  the  horses  while 
under  such  treatment.     Gillett  v.  Western  Railroad  Corporation,  8  Allen  (Mass.),  560. 

2  See  Perkins  v.  Towle,  43  N.  H.  220. 

8  Compare  Carrell  v.  Municipality  No.  2,  7  La.  Ann.  632.  The  injured  party  is  entitled 
to  damages  for  the  trespass  itself,  independently  of  the  injury  it  may  occasion.  So  where 
the  plaintiff's  hogs  were  wantonly  shot,  his  use  of  the  pork  was  held  only  to  relieve  the  de- 
fendant from  liability  for  its  value,  and  neither  to  affect  the  plaintiff's  right  of  action,  nor 
diminish  the  damages  to  which  he  was  entitled  for  the  trespass.  Champion  v.  Vincent,  20 
Tex.  811. 


CH.    XVIII.]  EXEMPLARY   DAMAGES.  517 

Exemplary  Damages.  —  In  regard  to  these  latter  cases,  we 
have  ah'eacly  observed  the  general  disregard  of  the  principle  of 
compensation  by  which  they  are  marked.*  And  I  have  stated 
the  rule  to  be,  that  where  gross  fraud,  malice,  or  oppression 
appears,  the  jury  are  not  bound  to  adhere  to  the  strict  line  of 
compensation,  but  may,  by  a  severer  verdict,  at  once  impose  a 
punishment  on  the  defendant  and  hold  up  an  example  to  the 
connnunity.  I  proceed  now  to  a  review  of  the  cases  in  which 
this  salutary  doctrine  has  been  maintained. 

In  Tort  the  Defendant's  Intent  is  Material.  —  That 
the  intent  of  the  defendant  is  material  in  regard  to  dam-  [455] 
ages,  has  always  been  recognized  in  our  law :  "  Damages 
are  graduated  by  the  intent  of  the  party  committing  the 
wrong."  t  Indeed,  the  rule  is,  that  if  the  rights  of  another  party 
are  invaded,  although  without  evil  design,  and  even  if  the  act 
be  purely  accidental,  the  trespass  must  be  answered  for  in  dam- 
ages.^ The  question  of  intention  is  only  urged  in  mitigation  or 
aggravation  of  damages.  Thus  in  an  early  decision,  a  case  of 
trespass  qiiare  claimim  f regit  is  cited,  where  the  defendant  pleaded 
"he  had  an  acre  lying  next  the  six  acres  [locus  in  quo),  and  on  it 
a  hedge  of  thorns :  he  cut  the  thorns,  and  they,  ipso  invito,  fell 
upon  the  plaintiff's  land ;  and  the  defendant  took  them  off  as 
soon  as  he  could,  which  is  the  same  trespass ;  and  the  plaintiff 
demurred,  and  it  was  adjudged  for  the  plaintiff";  for  though  a 
man  do  a  lawful  thing  yet  if  any  damage  do  hereby  beflxU  an- 
other, he  shall  answer  for  it  if  he  could  have  avoided  it.  As,  if 
a  man  fell  a  tree,  and  the  boughs  fall  on  another,  ipso  invito,  yet 
the  action  lies.  If  a  man  shoot  at  butts  and  hurt  another  un- 
awares, an  action  lies.  I  have  land  through  which  a  river  runs 
to  turn  your  mill,  and  I  top  the  sallows  growing  on  the  river- 
side, which  accidentally  stop  the  water  so  as  your  mill  is  hin- 
dered :  an  action  lies.  If  I  am  building  my  own  house,  and  a 
piece  of  timber  fall  on  my  neighbor's  house  and  breaks  part  of. 
it,  an  action  lies."  %     So  in  a  recent  case  in  the  Common  Pleas, 

*  Ante,  39.     In  addition  to  the  cases  cited  to  distinguish  between  a  mere  neplcct  and  a 

in  the  text,  others  will  be  found  bearing  on  malicious  design,  that  besides  the  demand  of 

the  subject.     Leland  v.  Stone,  10  Mass.  459 ;  reparation   for  damages   done,    some  punish- 

Weld  i;.  Bartlett,  10  Mass.  470,  473  ;  Stone  v.  ment  may  reasonably  be   inflicted   u]ron  the 

Codman,  15  Pick.  297;  Earned  v.  Bulhngton,  person  so  offending."   Eutherforth's  Institutes 

3  Mass.  546  ;  Richards  v.  Farnham,  13  Pick,  of  National  Law,  book  i.  eh.  17,  Reparation, 

451.    And  the  doctrine  of  our  law  is  supported  p.  209. 

by  writers  of  more  than  mere  judicial  author-  t  Krom  v.  Schooumaker,  3  Barb.  S.  C.  R. 

ity.     Thus  says  Mr.  Ruthcrforth,  "  Indeed,  in  647,  650. 

many  instances  of  gross  foult,  it  is  so  ditiicult  J  Lambert  v.  Bessey,  Sir  T.  Raym.  421. 

1  See  Price  v.  Murray,  10  Bosw.  (N.  Y.)  243. 


518  ACTIONS    FOR   TORTS.  [CH.    XVIII. 

when  in  an  aflray  the  plaintiff  was  struck  by  accident,  Bosan- 
quet,  J.,  said  to  the  jury,  "  The  plaintiff  is  entitled  to  your  ver- 
dict, whether  it  was  done  intentionally  or  not.  But  the  inten- 
tion is  material  in  considering  the  amount  of  damages."  *  So, 
also,  in  New  York,  in  an  action  against  a  company  for  blasting 
negligently  done  by  their  agents.f  The  principle  that  in  tres- 
pass the  intent  is  not  conclusive,  is  carried  so  far  that  a  lunatic 
is  held  liable  for  his  tortious  acts,  as,  an  insane  justice  in  an 
action  for  false  imprisonment.J  On  principle  this  should  never 
have  been  permitted.^  In  the  case  of  the  compos  mentis, 
[456]  although  the  intent  be  not  decisive,  still,  the  act  pun- 
ished is  that  of  a  party  competent  to  foresee  and  guard 
against  the  consequences  of  his  conduct;  and  inevitable  acci- 
dent has  always  been  held  an  excuse.  In  the  case  of  the  lunatic 
it  may  be  urged,  both  that  no  good  policy  requires  the  interpo- 
sition of  the  law,  and  that  the  act  belongs  to  the  class  of  cases 
which  may  ■w^ell  be  termed  inevitable  accidents. 

In  some  Cases  Punishment  of  the  Defendant  is  Added  to  or 
Substituted  for  Compensation  to  the  Plad^tiff.  —  It  might  be 
said,  however,  that  the  malicious  or  insolent  intention  does  in 
fact  increase  the  injury,  and  the  doctrine  of  exemplary  dam- 
ages might  thus  be  reconciled  with  the  strict  notion  of  compen- 
sation ;  but  it  will  appear  from  the  cases  we  now  proceed  to  ex- 
amine, that  the  idea  of  compensation  is  abandoned  and  that  of 
punishment  introduced. 

English  Cases.  —  So  in  an  action  of  tresjDass,  assault,  and 
imprisonment,  the  act  complained  of  being  an  arrest  of  the 
plaintiff  as  printer  of  the  "North  Briton,"  under  a  general  war- 
rant issued  by  Lord  Halifax,  then  Secretary  of  State  —  no  actual 
ill-treatment  being  alleged,  the  jury  having  found  a  verdict  for 
<£300,  on  a  motion  for  a  new  trial  on  the  ground  of  excessive 
damages,  Lord  Chief  Justice  Pratt,  afterwards  Lord  Camden, 
said,  — 

"  I  cannot  say  what  damages  I  should  have  given  if  I  had  been  upon  the 
jury  ;  but  I  directed  and  told  them  they  were  not  bound  to  any  certain  dam- 
ages, against  the  solicitor-general's  argument.     The  personal  injury  done  to  the 

*  James  v.  Campbell,  5  Car.  &  Payne,  372.     647 ;  Morse  v.  Crawford,  17  Verm.  499 ;  Bush 
t  Hay  V.  Cohoes  Co.  3  Barb.  S.  C.  R.  42.        v.  Pettibone,  4  Comstock,  300. 
%  Krom  V.  Sclioonmaker,  3  Barb.  S.  C.  R. 

'  But  althougli  an  insane  defendant  should  not  be  punished  cither  civilly  or  criminally  for 
his  acts,  yet  a  verdict  to  the  extent  of  compensation  for  the  actual  loss  sustained  by  the  injured 
party  in  "such  a  case  appears  to  us  right. 


en.    XVIII.]  EXEMPLARY   DAMAGES.  519 

plaintifT  was  very  small  ;  so  that  if  tlie  jui-y  had  been  confined  Ijy  their  oath  to 
consider  the  mere  personal  injury  only,  perhaps  £20  damages  would  have  been 
thought  damages  sufficient ;  but  the  small  injury  done  to  the  plaintiff,  or  the 
iuconsiderableness  of  bis  rank  and  station  in  life,  did  not  appear  to  the  jury  in 
that  striking  light  in  which  the  great  point  of  law,  touching  the  liberty  of  the 
subject,  appeared  to  them  at  the  trial ;  they  saw  a  magistrate  over  all  the  king's 
subjects  exercising  arbitrary  power,  violating  magna  charta,  and  attempting  to 
destroy  the  liberty  of  the  kingdom,  by  insisting  upon  the  legality  of  this  general 
warrant  before  them :  they  heard  the  king's  counsel,  and  saw  the  solicitor  of  the 
treasury",  endeavoring  to  support  and  maintain  the  legality  of  the  warrant  in  a 
tyrannical  and  severe  manner ;  these  are  the  ideas  which  struck  the  jury  on  the 
trial ;  and  I  think  they  have  done  right  in  giving  exemplary  damages."* 

And  the  motion  for  a  new  trial  was  denied.-|- 

So,  in  an  action  of  trespass,  for  debauching  the  plain-  [457] 
tiff's  daughter,  a  verdict  having  been  found  for  £50,  on 
a  motion  for  a  new  trial  on  the  ground  that  the  damages  were 
excessive,  Wilmot,  Lord  Chief  Justice,  said,  "  Actions  of  this 
sort  are  brought  for  example's  sake ;  and  although  the  plaintiff's 
loss  in  this  case  may  not  really  amount  to  the  value  of  twenty 
shillings,  yet  the  jury  have  clone  right  in  giving  liberal  dam- 
ages." I 

In  an  action  in  the  English  Common  Pleas,  of  trespass  qiiare 
clausum  fregit,  it  appeared  that  the  plaintiff,  a  gentleman  of 
fortune,  was  shooting  on  his  own  estate,  when  the  defendant,  a 
banker,  magistrate,  and  member  of  Parliament,  forced  himself 
on  the  plaintiff's  land,  fired  at  game  several  times,  and  used  very 
intemperate  language.  The  jury  found  a  verdict  for  <£500  ;  and 
on  a  motion  to  set  it  aside  for  excess,  Gibbs,  C.  J.,  said,  — 

"  I  wish  to  know,  in  a  case  where  a  man  disregards  every  principle  which 
actuates  the  conduct  of  gentlemen,  what  is  to  restrain  him  except  damages  ?  To 
be  sure,  one  can  hardly  conceive  worse  conduct  than  this.  What  would  be  said 
to  a  person  in  a  low  situation  in  life,  who  should  behave  himself  in  this  manner  ? 
I  do  not  know  upon  what  principle  we  can  grant  a  rule  in  this  case,  unless  we 
were  to  lay  it  down  that  the  jury  are  not  justified  in  giving  more  than  the  abso- 
lute pecuniary  damage  that  the  plaintiff  may  sustain.  Suppose  a  gentleman  has 
a  paved  walk  in  his  paddock,  before  his  window,  and  that  a  man  intrudes,  and 

*  Iluckle  V.  Money,  2  Wils.  205.  have  said,  "  As  to  the  daniafres,  I  continue  of 

t  Beardmore   v.    Carrington,   2  Wils.  244,  opinion  that  the  jury  are  not  limited  to  the  in- 

was  an  action  also  growing-  ont  of  these  gen-  jury  received.    Damages  are  designed  not  only 

eral  warrants,  where  a  verdict  was  found  for  as  a  satisfaction   to   the  injured  ])erson,  but 

the  ])laintiff  in  £1,000.     As  he  had  been  ira-  likewise  as  a  punishment  to  the  guilty,  and  as 

])ris()ned  but  six  days,  a  motion  was  made  for  a  proof  of  the  detestation  in  which  the  wrong- 

a  new  trial,  on  the  ground  of  the  excossiveness  ful   act  is  held  by  the  jury."     Eut  I  cannot 

of  the  damages.     But  it  was  refused.     Lord  find  this  language  in  tlie  case  as  reported  by 

Camjiliell.   in  his  Lives  of  Ike  Chancellors,  \o\.  Wilson. 
v.  p.  249,  reports  Lord  Chief  Justice  Fratt  to        t  TuUidge  v.  Wade,  3  Wils.  18. 


520  ACTIONS   FOR   TORTS.  [CH.    XVIII. 

walks  up  and  down  before  the  window  of  his  house,  and  looks  in  while  the  owner 
is  at  dinner,  is  the  trespasser  to  be  permitted  to  say,  '  Here  is  a  half-penny  for 
you,  which  is  the  full  extent  of  all  the  mischief  I  have  done  '  ?  Would  that  be  a 
compensation?  I  cannot  say  that  it  would  be."  And  Heatlf,  J.,  said,  "Ire- 
member  a  case  where  the  jury  gave  £500  damages  for  merely  knocking  a  man's 
hat  off;  and  the  court  refused  a  new  trial.  There  was  not  one  country  gentleman 
in  a  hundred  who  would  have  behaved  with  the  laudable  and  dignified  coolness 
which  this  plaintiff  did.  It  goes  to  prevent  the  practice  of  duelling,  if  juries  are 
permitted  to  punish  insult  by  exemplary  damages."  * 

In  a  case  in  the  King's  Bench,  which  was  trespass  for 
[458]  breaking  the  plaintiff's  close,  and  laying  poison  upon 
it  to  destroy  the  plaintiff's  poultry,  the  defendant  con- 
tended that  he  was  only  liable  for  the  value  of  the  fowls  de- 
stroyed ;  but  Abbott,  J.,  told  the  jury  that  they  might  consider 
not  only  the  mere  pecuniary  damage,  but  also  the  intention, 
whether  for  insult  or  injury ;  and  the  verdict  was  £50.t 

So,  in  a  recent  case,$  the  Court  of  Exchequer  said,  "  In 
actions  for  malicious  injuries,  juries  have  been  allowed  to  give 
what  are  called  vindictive  damages,  and  to  take  all  the  circum- 
stances into  consideration." 

So  in  the  Exchequer  Chamber,  Lord  Denman  recently  said 
that  the  actions  of  trespass  of  real  and  personal  property  were 
an  extension  of  that  protection  which  the  law  throws  around  the 
person,  and  that  substantial  damages  may  be  recovered  in  re- 
spect of  such  rights,  though  no  loss  or  diminution  in  value  of 
property  may  have  occurred.§ 

American  Cases.  —  In  the  United  States  generally,  the  power 
of  the  jury  to  give  exemplary  damages  where  circumstances  of 
aggravation  render  it  impossible  to  apply  any  fixed  rule  of  law, 
has  been  steadily  maintained. 

So  on  the  Pennsylvania  circuit :  "  I  admit,"  said  Washington, 
J.,||  "  that  in  cases  where  merely  vindictive  damages  are  sued 
for,  the  jury  act  without  control  on  the  subject  of  damages  ;  be- 
cause there  is  no  legal  rule  by  which  they  can  be  measured  ; 
and  unless  they  are  so  extravagant  as  to  induce  a  suspicion  of 
improper  conduct,  the  court  will  not  interfere. 

The  rule  is  well  settled  in  New  York.  So  in  an  action  for 
libel,  it  was  urged  on  a  motion  for  a  new  trial,  that  the  public 
character  of  the  plaintiff  as  an  officer  of  government,  and  the 

*  Merest  v.  Harvey,  5  Taunt.  442.  See   also,  Williams  v.  Currie,  1  Jlan.  Gr.  & 

t  Sears  v.  Lj-ons,  2  Stark.  317.  So.  841. 

t  Doe  V.  Folliter,  13  Mees.  &  Wels.  47.  ||  Walker  v.  Smith,  1  Wash.  C.  C.  R.  152. 
§  Rogers  v.  Spence,  13  M.  &  Wels.  571. 


en.  xviil]  exemplary  damages.  521 

evil  example  of  libels,  were  stated  by  the  judge  to  the  jury,  as 
considerations  with  them  for  increasing  the  damages;  but  Kent, 
C.  J.,  delivering  the  opinion  of  the  Supreme  Court  said,  "Surely 
this  is  the  true  and  salutary  doctrine.  The  actual  pecuniary 
damages  in  action  for  defamation,  as  well  as  in  other 
actions  for  tort,  can  rarely  be  computed,  and  are  never  [450] 
the  sole  rule  of  assessment."  And  after  reviewing  the 
English  cases,  the  court  proceeded :  "  But  it  cannot  be  requisite 
to  multiply  instances  in  which  the  doctrine  contained  in  this 
part  of  the  charge  has  received  the  sanction  of  English  and 
American  courts  of  justice.  It  is  too  well  settled  in  practice, 
and  is  too  valuable  in  principle,  to  be  called  in  question."  * 
Spencer,  J.,  held  still  stronger  language.  "  In  vindictive  ac- 
tions," he  said,  "such  as  for  libels,  defamation,  assault  and  bat- 
tery, false  imprisonment,  and  a  variety  of  others,  it  is  always 
given  in  charge  to  the  jury  that  they  are  to  inflict  damages  for 
example's  sake,  and  by  way  of  punishing  the  defendant." 

So  again,  in  another  case,t  where  trespass  was  brought  for 
beating  a  horse  to  death,  the  judge  charged,  that  if  they  found 
for  the  plaintiff,  it  was  a  case  in  which  from  the  wantonness  and 
cruelty  of  the  defendant's  conduct,  the  jury  had  a  right  to  give 
smart  money.  A  verdict  was  found  for  $75.  A  motion  was 
made  to  set  aside  the  verdict  for  misdirection,  and  for  excessive 
damages ;  but  the  Supreme  Court  of  New  York  said,  "  Great 
barbarity  was  proved  on  the  part  of  the  plaintiff;  we  think  the 
charge  of  the  judge  was  correct,  and  should  have  been  better 
satisfied  with  the  verdict  if  the  amount  of  damages  had  been 
greater  and  more  exemplary ; "  and  the  motion  was  denied. 

The  same  principle  was  recognized  on  the  Massachusetts  cir- 
cuit, by  Mr.  Justice  Story ,$  who  said,  "  In  cases  of  marine  torts, 
or  illegal  captures,  it  is  far  from  being  uncommon  in  the  Ad- 
miralty to  allow  costs  and  expenses,  and  to  mulct  the  offending 
parties^  even  in  exemplary  damages,  when  the  nature  of  the  case 
requires  it.  Courts  of  Admiralty  allow  such  claims,  not  tech- 
nically as  costs,  but  on  the  same  principle  as  damages  are  often 
allowed  in  cases  of  torts  by  courts  of  common  law,  as  a  recom- 
pense for  injuries  sustained,  as  exemplary  damages,  or  as  a  remu- 
neration for  expenses  incurred,  or  losses  sustained,  by  the  mis- 
conduct of  the  other  party." 

So,  again,  the  same  learned  judge,  on  the  Maine  circuit,  in  an 
action  for  malicious  prosecution,  used  this  language  :  "  If  in  the 

*  Tillotson  V.   ChcethiiiB,  3  J.  R.  56  and        |  Boston  Manuf.  Co.  i;.  Fiske,  2  Mason  R. 
64.  120 

t  Woert  V.  Jenkins,  14  J.  R.  352. 


522  ACTIONS    FOR   TORTS.  [CH.    XVIII. 

present  case  there  was  on  the  part  of  the  defendant  a  want  of 

probable  cause ;  yet  if  he  acted  under  a  mistaken  sense 
[460]  of  duty  and  without  any  intention  of  oppression,  it  was 

at  most  a  case  for  com'pcnudory  and  not  for  vindictive  dam- 
ages.* 

So  in  New  Hampshire,  in  an  action  on  the  case  to  recover 
damages,  resulting  from  defects  of  a  bridge  which  the  defendants 
were  bound  to  repair,  the  jury  were  instructed  that  exemplary 
damages  might  be  allowed  in  their  discretion,  in  case  they  be- 
lieved there  had  been  gross  negligence  on  the  part  of  the  de- 
fendants ;  and  on  a  motion  for  a  new  trial  for  misdirection,  the 
Superior  Court  reviewed  the  English  and  American  cases,  and 
closed  by  saying,  "  The  principle  being  thus  established,  that  in 
actions  for  torts  to  the  person  and  to  personal  property,  the  jury 
may  give  liberal  or  exemplary  damages  in  their  discretion,  dam- 
ages beyond  the  actual  injury  sustained,  for  the  sake  of  the 
example,  the  only  remaining  inquiry  is  whether  the  present  case 
was  proper  for  the  exercise  of  that  discretion."  And  it  was  held 
to  be  so.f 

So  in  Connecticut,  in  an  action  on  the  case  for  gross  negli- 
gence, it  was  said  by  Church,  J.,  in  delivering  the  opinion  of 
the  Supreme  Court  of  Errors,  "  There  is  no  principle  better  es- 
tablished and  in  practice  more  universal,  than  that  vindictive  dam- 
ages or  smart  money  may  be  and  is  awarded  by  the  verdict  of 
juries,  and  whether  the  form  of  action  be  trespass  or  case."  t 

So  in  Pennsylvania,  Gibson,  J.,  delivering  the  opinion  of  the 
court,  said,  '•  In  cases  of  personal  injury,  damages  are  given  not 
to  compensate  but  to  punish."  § 

And  the  doctrine  has  been  fully  adopted  by  the  Supreme 
Court  of  the  United  States.  In  an  action  of  trover,]]  brought 
for  goods  illegally  seized  by  the  collector  of  New  York  under 
instructions  from  the  secretary  of  the  navy,  his  immediate  supe- 
rior, the  circuit  judge  charged  that  the  collector  having  acted  in 
good  faith  should  not  be  subjected  to  the  payment  of  more  than 
nominal  damages.  But  the  Supreme  Court  said,  "  Where  a 
ministerial  officer  acts  in  good  faith,  for  an  injury  done,  he  is 

not  liable  to  exemplary  damages ;  but  he  can  claim  no 
[461]  further  exemption  where  his  acts  are  clearly  against  law. 

The  good  faith  with  which  the  defendant  seems  to  have 
acted,  should  not  exempt  him  from  compensaiori/  damage." 

So  in  a  case  of  marine  trespass,  brought  against  the  owners 

*  Wiggin  V.  Coffin,  3  Story,  1.  §  Pastorius  v.  Fisher,  1  Rawle,  27  ;  but  it 

X  Whipple  V.  Walpolc,  10  N.  H.  R.  130.  is  to  be  noticed  that  tlie  remark  is  obiter. 
\  Linsley  v.  Bnshncll,  15   Conn.  225,  and         ||  Tracy  v.  Swartwout,  10  Peters,  81. 
Huntley  v.  Bacon,  15  Conn.  271. 


en.    XVIII.]  EXEMPLARY    DAMAGES.  523 

of  a  privateer  for  an  illegal  seizure,  the  Supreme  Court  of  the 
United  States  said,  "This  is  a  case  of  gross  and  wanton  outrage. 
The  honor  of  the  country  and  the  duty  of  the  court  e(|ually 
require  that  a  just  compensation  should  be  made  to  unofluiiding 
neutrals,  for  all  the  injuries  and  losses  actually  sustained  by  them. 
And  if  tliis  were  a  suit  against  the  original  wrong-doers,  it  might 
be  proper  to  go  yet  further,  and  visit  upon  them,  in  the  shape 
of  exemplary  damages,  the  proper  punishment  which  belongs  to 
such  lawless  misconduct.  But  it  is  to  be  considered  that  this  is 
a  suit  against  the  owners  of  the  privateer;  they  are  innocent  of 
the  demerit  of  the  transaction.  Under  such  circumstances,  we 
are  of  opinion  they  are  bound  to  repair  all  the  real  injuries  and 
personal  wrongs  sustained  by  the  libelants,  but  they  are  not 
bound  to  the  extent  of  vindictive  damages."  ^ 

So  in  Connecticut,  it  has  been  said,  that  in  actions  for  injuries 
to  personal  property,  "the  jury  are  not  restricted  to  the  pecuni- 
ary loss  of  the  plaintiff.! 

So  in  Pennsylvania,  "  that  with  a  view  to  promote  the  peace 
and  quiet  of  society,  and  to  protect  every  one  in  the  full  enjoy- 
ment of  his  rights,  the  jury  are  at  liberty  to  give  vindictive  or 
exemj^lary  damages."  t 

In  Alabama  it  has  been  recently  said,  in  reference  to  the 
action  for  malicious  prosecution,  that  "  the  common  law  in  such 
cases  allows  the  jury,  if  they  choose,  to  make  an  example  of  the 
defendant  when  sued  for  redress,  and  will  allow  them  to  go 
beyond  the  actual  damage  the  party  has  sustained."  § 

So  in  Louisiana,  that  damages  are  to  be  measured  by  the 
extent  of  injury  ;  except  where  the  defendant  has  been  guilty  of 
gross  misconduct,  and  then  vindictive  damages  may  be  some- 
times given  by  the  jury.|| 

In  New  York  the  general  rule  has  been  repeatedly 
declared.  So,  in  an  action  for  libel,  it  was  said  by  the  [462] 
chancellor,  in  the  Court  of  Errors,  "  The  jury  may  not 
only  give  such  damages  as  they  think  necessary  to  compensate 
the  plaintiff  for  his  actual  injury,  but  they  may  also  give  dam- 
ages by  way  of  punishment  to  the  defendants.  This  is  usually 
denominated  exemplary  damages,  or  smart  money."  ^ 

The  subject  has  been  again  recently  examined  in  the  same 
State,  and  the  general  principle  very  clearly  stated.     It  was  an 

*  Story,  J.,  in  the  Amiable  Nancy,  3  Whea-  §  Donnell  v.  Jones,   13   Ala.   N.   S.   490, 

ton,  546.  502. 

t  Merrills  v.  Tariff  Man'g  Co.    10  Conn.  |i  Nelson  v.  Morgan,  2  Martin  L.  K.  257. 

384.  1  Iving  v.  Eoot,  4  Wend.  113,  139. 

J  Phillips  V.  Lawrence,  6   Watts  &   Serg. 
150. 


524  ACTIONS    FOR   TORTS.  [CH.    XVIII. 

action  for  assault  and  battery,  where  it  was  insisted  that  the 
fact  that  the  defendant  had  been  punished  criminally  for  the 
offense  should  be  received  in  evidence  to  mitigate  damages  in 
the  civil  suit.     The  court  held  otherwise,  saying,  — 

"  In  vindictive  actions,  and  tliis  is  agreed  to  come  within  that  class,  jurors  are 
always  authorized  to  give  exemplary  damages,  when  the  injury  is  attended  with 
circumstances  of  aggravation ;  and  the  rule  is  laid  down  without  the  qualifica- 
tion, that  we  are  to  regard  either  the  probable  or  the  actual  punishment  of  the 
defendant  by  indictment  and  conviction  at  the  suit  of  the  people We  con- 
cede that  smart  money  allowed  by  a  jury,  and  fines  imposed  at  the  suit  of  the 
people,  depend  on  the  same  principle.  Both  are  penal,  and  intended  to  deter 
others  from  the  commission  of  the  like  crime.  The  former,  however,  becomes 
incidentally  compensatory  for  damages,  and  at  the  same  time  answers  the  pur- 
poses of  punishment."  * 

In  a  still  more  recent  case,  in  the  Court  of  Errors  of  the  same 
State,  Mr.  Senator  Strong  said,  "  In  aggravated  cases  of  this 
nature,  are  not  jurors  daily  charged,  to  give  such  damages  as 
shall  not  only  remunerate  the  plaintiff,  but  operate  as  a  punish- 
ment to  the  defendant  —  as  shall  deter  him  and  others  in  like 
case  offending,  from  the  perpetration  of  similar  enormities  ?  "  f 

A  very  full  discussion  has  been  recently  had  of  the 
[463]  subject  in  Pennsylvania,  when  the  following  language  was 
held,  and  the  doctrine  well  maintained  on  principle :  — 

"  In  trespass,  the  quo  animo  is  certainly  not  material  to  the  question  of  lia- 
bility :  nor  is  it  so  even  to  the  quantum  of  damages,  in  order  to  bring  it  below 
the  actual  injury.  The  common  law  rejects  the  compromising  principle  of  the 
civil  law  which  divides  the  loss  betwixt  parties  equally  blameless ;  and  acts  on  a 
sterner  but  more  exact  rule  of  justice,  by  casting  the  whole  on  him  who  occa- 
sioned it,  and  requiring  him  to  bear  the  consequences  of  his  own  acts  and  his 
own  mischances.  But  though  mitigaut  circumstances  may  not  reduce  the  com- 
pensation below  actual  loss,  may  not  circumstances  of  aggravation  be  suffered  to 
enhance  it  ?  "Whatever  be  the  speculative  notions  of  flinciful  writers,  the 
authorities  teach  that  damages  may  be  given  in  peculiar  cases,  not  only  to  com- 
pensate, but  to  punish.  There  are  offenses  against  morals,  to  which  tlie  law 
has  annexed  no  penalty  as  public  wrongs,  and  which  would  pass  without  repre- 

*  Cooke  V.  Ellis,  6  Hill,  466.    See  also,  TifFt  fine  imposed  on  the  defendant,  is  not  entitled 

V.  Culver,  3  Hill,   180;  Auchmuty  v.  Ham,  in  an  action  a<^ainst  the  same  defendant  to 

1  Denio,  495  ;  and  Brizsee  i'.  Maybee,  21  Wend,  recovci'  more  than  nominal  damages.     Jacks 

144,  where  it  is  suggested  the  jury  may  give  v.  Bell,  3  Car.  &  Payne,  316. 
smart  money  in  replevin.  t  Burr  v.  Burr,  7  Hill,  207, 217  ;  and  see  the 

In  England,  however,  it  has  been  held  that  rule  A'ery  strongly  laid  down  in  cases  of  slan- 

a  party  not  suffering  any  actual  injury,  who  der  of  title,  in  Kendall  v.  Stone,  2  Saudf.  S.  C. 

has  preferred  an  indictment,  and  succeeded,  269. 
and  received  from  the  treasury  a  portion  of  the 


CH.  xviil]  exemplary  da:\iages.  525 

hcusioii,  (lid  not  Uic  providence,  of  the  courts  permit  the  private  remedy  to 
become  an  instrument  of  2>uhlic  correction.  Such,  in  a  signal  degree,  is  the 
function  of  an  action  for  debauching  a  daughter,  in  which  the  conscfjuential  loss 
of  service  —  the  legal  and  technical  injury  —  is  compensated  a  thousand-fold 
though  its  value  is  as  capable  of  accurate  estimation  as  that  of  any  other  com- 
modity. It  is  idle  to  say  that  loss  of  service  is  not  the  real  gravamen.  The 
law  tolerates  no  anomaly  so  monstrous  as  a  count  for  one  cause  of  action,  and  a 
recovery  for  another.  Were  damages  given  not  to  castigate  but  to  remunerate 
for  loss  of  prospects,  comfort,  and  honor,  —  if  haply  there  could  be  an  equivalent 
for  these,  —  the  count  and  the  evidence  would  conform  to  the  grievance ;  instead 
of  which,  it  is  indispensable  to  assert  the  evidence  of  servitude,  and  to  prove  it. 
As  regards  the  plaintiS",  then,  the  ostensible  wrong  is  the  real  one  ;  but  as  regards 
the  public,  it  may  be  a  very  different  thing.  On  no  other  principle  could 
more  be  given  than  is  commensurate  with  what  the  law  admits  to  be  an  injury. 
On  what  other  principle  are  the  circumstances  of  the  defendant  put  before  the 
jury  for  the  purposes  of  aggravation  or  mitigation,  in  perhaps  all  cases  of  per- 
sonal tort  ?  The  ability  of  the  plaintiff  legitimately  enters  into  the  estimate  of 
compensatory  damages,  because  a  dollar  is  worth  less  to  a  rich  man  than  to  a 
poor  one ;  but  the  extent  of  an  injury  has  no  imaginable  relation  to  the  means  of 
him  who  is  to  repair  it.  In  actions  whose  end  is  clearly  compensation,  and  no 
more  —  trover  and  debt  for  example  —  tlie  law  inquires  not  into  the  ability  of  him 
who  has  converted  my  chattels,  or  withheld  my  money,  but  gives  me  the  same 
damages  or  interest,  whether  he  be  rich  or  whether  he  be  poor,  or  whether  the 
wrong  were  more  or  less  excusable  in  a  moral  view ;  and  the  converse  shows 
that  where  the  defendant's  circumstances  are  brought  into  the  account,  some- 
thing else  than  individual  reparation  is  contemplated.  Nor  can  it  be  said  that 
the  wrong-doer  is  to  suffer  in  order  to  appease  the  resentment  of  the  injured, 
and  that  even  vindicatory  damages  are  in  truth  compensatory.  The  purposes 
of  the  law  are  more  elevated  than  the  gratification  of  revenge.  Mental  or  bodily 
pain  is  doubtless  a  legitimate  subject  of  amends,  produced,  however, 
not  by  the  infliction  of  suffering,  but  by  a  pecuniary  equivalent.  The  ["464] 
enhancement  of  damages,  by  the  ability  of  the  defendant,  not  being 
designed  for  the  benefit  of  the  plaintiff,  must  consequently  be  for  something 
beyond  compensation.  That  corrective  damages  may  be  given  for  the  sake  of 
example,  is  as  old  as  the  law  itself."  * 

But  in  an  amicable  action  it  is  error  to  tell  the  jury  they 
were  not  confined  to  the  actual  damage."]*     So  in  New  York,  in 

*  McBride  i;.  McLaughlin,  5  Watts'.  R.  has  acted  from  improper  motives,  the  damages 
375.  In  Kentucky,  sec  Morrison's  Kx'rs  v.  ought  not  to  be  assessed  with  reference  to  the 
Hart,  2  Bil)b,  4,  and  Smith  v.  Lush,  4  Bibb,  act  and  motives  of  the  most  guilty  or  the  most 
502.  On  the  Massachusetts  circuit,  see  Whitte-  innocent  party,  but  the  true  criterion  of  dam- 
more  !•.  Cutter,  1  Gall.  478,  483.  In  Conard  age  is  the  whole  injury  which  the  plaintiti'  has 
V.  Pacific  Ins.  Co.  6  Peters,  262,  282,  see  a  sustained  from  the  joiiit  act  of  trespass.  Clark 
very  strong  charge  at  the  circuit.  Where,  v.  Newsom,  1  Exch.  R.  131. 
however,  two  persons  are  jointly  sued  for  an  t  Amer  v.  Lougstreth,  10  Penn.  St.  145. 
assault  or  other  trespass,  only  one  of  whom 


526  ACTIONS    FOR   TORTS.  [CH.    XVIII. 

actions  for  the  loss  of  service  (not  being  for  seduction),  the 
father  cannot  recover  more  than  actual  damages,  as  the  child 
may  maintain  his  own  suit.*  ^ 

In  an  exceedingly  well  reasoned  case  on  the  Pennsylvania 
circuit,  Mr.  Justice  Grier  said,  — 

"  It  is  a  well-settled  doctrine  of  the  common  law,  though  somewhat  disputed 
of  late,  that  a  jury,  in  actions  of  trespass  or  tort,  may  inflict  exemplary  or  vin- 
dictive damages  upon  a  defendant,  having  in  view  tlie  enormity  of  the  defendant's 
conduct  rather  than  compensation  to  the  plaintiff.  Indeed,  in  many  actions,  such 
as  slander,  libel,  seduction,  etc.,  there  is  no  measure  of  damages  by  which  they 
can  be  given  as  compensation  for  an  injury,  but  are  inflicted  wholly  with  a  view 
to  punish  and  make  an  example  of  the  defendant."! 

So,  also,  it  has  been  said  in  Illinois,  "  In  vindictive  actions  the 
jury  are  always  permitted  to  give  damages  for  the  double  pur- 
pose of  setting  an  example  and  punishing  the  wrong-doer."  t 
So,  again,  in  an  action  of  trespass  for  assault  and  battery,  it  was 
said,  "In  this  class  of  cases  the  jury  may  give  exemplary  dam- 
ages, not  only  to  compensate  the  plaintiff,  but  to  punish  the  de- 
fendant." §     And  in  Texas  the  principle  has  been  very  recently 

recogrnized.l! 
[465]  So,  also,  recently  in  the  State  of  Alabama,  in  an  action 
of  trespass  quare  clausum  fregit.^  In  a  case  of  deceit, 
in  South  Carolina,  the  court  said  that  the  jury  were  at  liberty  to 
compensate  the  plaintiff,  and  punish  a  palpable  fraud.**  And 
in  another  case  in  the  same  State,  where  a  trespass  having  been 
committed,  the  actual  damage  was  very  trifling,  not  exceeding, 
as  was  admitted,  twenty  dollars,  and  the  jury  gave  three  thou- 
sand dollars  ;  the  court  said  that  if  it  had  rested  with  them,  they 
should  not  have  given  more  than  five  hundred,  but  they  refused 
to  disturb  the  verdict. ft 

In  North  Carolina  the  principle  of  vindictive  damages  has 
been  distinctly  declared,  but  has  been  held  not  to  apply  to  suits 

*  Whitney  v.  Hitchcock,  4  Denio,  46.3.  §  McNaraara  v.  King,  2  Oilman,  432,  436. 

t  Stimpson   v.  The   Raih-oads,  2    Wallace,         1|  Smith  v.  Sherwood,  2  Texas  R.  460. 
Jun.R.  164.  1  Mitchell    v.    Billingsley,    17    Ala.    391, 

I  Grabe   v.    Margrave,    3    Scammon,    373.  Jan'y,  1850 ;  Ives  v.  M'Queen,  17  Ala.  408. 
See  also,  Johnson  v.  Weedman,  4  Scammon,        **  Spikes  v.  English,  4  Strobhart,  34. 
495.  ft  Johnson  v.  Hannahan,  3  Strobhart,  425. 

1  But  in  Iowa  the  rule  is  otherwise.  Stevenson  v.  Belknap,  6  Iowa,  97.  And  in  New  Jersey, 
in  a  well  considered  case,  it  was  held  in  an  action  liy  a  father  to  recover  damages  for  the  abduc- 
tion of  his  three  minor  children,  that  although  proof  of  loss  of  services  was  essential  to  the 
maintenance  of  the  action,  yet  that  such  loss  being  shown,  exemplary  damages  could  be  given. 
Magee  v.  Holland,  3  Dutch.  (N.  J  )  86. 


GIL 


XVIII.] 


EXEMPLARY    DAMAGES. 


'fA( 


against  the  representatives  of  a  deceased  party  who  had  com- 
mitted the  act  coinphiined  of.* 

In  Slander  and  Libel  no  Proof  is  Necessarily  Required  of 
THE  Injury  from  Actionable  Words. — In  many  cases  of  slander 
and  hbel,  indeed,  the  law  even  steps  beyond  the  line  here  drawn, 
and  requires  no  proof  of  actual  injury  whatever,  to  entitle  the 
plaintilf  to  such  amount  as  the  jury  see  fit  to  give ;  f  the  only 
restriction  in  all  these  cases  being  the  power  exercised  by  the 
courts  over  corrupt,  partial,  and  passionate  verdicts.^ 


*  Ripley  v.  .Miller,  11  Iredell,  247. 
t  Starkie  on  Sl.inder,  Prel.  l)is.  26. 
J  I  am  not  aware  that  the  Rouuiii  law  knew 
anythinj;  of  exemplary  or  vintlietive  verdicts  ; 
but  ])erhaps  the  heaviest  claim  for  damages  on 
record  is  that  urged  by  Cicero  against  Verres, 
for  his  abuse  of  ]iower  in  Sicily.  He  tirst  rates 
it  at  millies,  £800,000  (Div.  in  Ccecil.  c.  5)  ; 
then  at  quadriiKjenlies,  £320,000  (I  Act.  in 
Verr.  c.  18) ;  and  was  finally  content  with 
tricies  (£24,000).  "After  a  triennial  indul- 
gence of  lust,  rapine,  and  cruelty,"  says  the 
"  luminous "  historian,  "  Verres,  the  tyrant 
of  Sicily,  could  only  be  sued  for  the  pecuniary 
restitution  of  three  hundred  thousand  pounds 
sterling.  And  such  was  the  temper  of  the 
laws,  the  judges,  and  perhaps  the  accuser  him- 
self, that  on  refunding  the  thirteenth  part  of 
his  ])hmder,  Verres  could  retire  to  an  easy  and 
luxurious  exile."  Gibbon  is  not  to  be  forgiven 
for  perpetuating  this  gossiping  slander  of 
Plutarch  against  the  integrity  of  Cicero.  Gib- 
bon, Hist.  eh.  44. 

In  Scotland,  the  principle  of  compensation 
seems  rigidly  adhered  to,  even  in  eases  of 
flagrant  wrong.  So  in  an  action  of  damages 
for  defamation,  sending  a  challenge,  assault, 
and  threatened  battery,  the  Lord  Chief  Com- 
missioner, Adam,  one  of  the  most  eminent 
judges  of  the  present  century,  said,  "  In  all 
cases  of  damage,  a  fair,  unprejudiced  discussion 
(avoiding  in  civil  cases  the  converting  compensa- 
tion/or a  civil  injur f)  into  a  matter  of  punishment) 
will  lead  to  a  rational,  conscientious,  and  fair 
com))romise  of  your  different  opinions,  and 
bring  you  to  fix  on  one  sum  "  ;  and  the  reporter 
adds,  "  In  all  cases  of  this  sort,  his  Lordship 
has  i3een  in  the  habit  of  repeating  this  doc- 
trine."    Ilyslop  V.  Staig,  1  Murr.  11.  1.5. 

Again,  in  an  action  for  defamation,  the  Lord 
Chief  Commissioner  said,  "  The  question  of 
damages,  in  case  of  an  attack  on  a  professional 
man,  must  always  include  both  a  question  of 
loss  and  solatium.  You  must  consider  it  as  a 
question  of  reparation,  not  of  punishment ;  but  if 
a  person  of  perfectly  pure  character  is  assailed 
in  this  manner,  you  will  consider  whether  a 
rich  man  ought  not  to  pay  a  little  more." 
Christian  v.  Lord  Kennedy,  1  Murr.  R.  428. 


The  same  rule  was  laid  down  by  the  same 
judge  in  actions  of  crim.  con. 

In  Baillie  v.  Bryson,  1  Murr.  II.  317  and  337, 
an  action  of  this  class,  the  Lord  Chief  Com- 
missioner said,  "  I  cannot  help  thinking  that 
Lord  Kenyon  introduced  into  cases  of  this  sort 
a  principle,  as  to  damages,  extremely  dan- 
gerous in  its  consequences.  He  considered 
such  questions  not  merely  as  calculated  to  re- 
pair  the  injury  done  to  the  one  party,  but  as  a 
punishment  of  the  other,  and  as  intended  to  cor- 
rect the  morals  of  the  country.  The  morals 
of  the  country  have  not  been  improved,  and  I  am 
afraid  its  feeling  has  been  much  impaired.  A 
civil  court  in  matters  of  civil  injur}-,  is  a  bad 
corrector  of  morals ;  it  has  only  to  do  with  the 
rights  of  parties." 

I  apprehend,  also,  that  this  doctrine  of  vin- 
dictive or  exemplary  damages  has  been  some- 
what shaken  in  the  State  of  Massachusetts, 
though  I  find  no  express  decision  to  the  eifect. 
In  Barnard  v.  Poor,  21  Pick.  R.  378,  an  ac- 
tion on  the  case  was  brought  for  setting  a  fire 
on  defendant's  own  land,  whereby  plaintiff's 
wood  was  consumed.  And  it  was  held,  that 
it  was  immaterial  whether  the  plaintiff  proved 
gross  negligence  or  only  want  of  ordinari/  care, 
inasmuch  as  he  could  only  recover  for  the 
actual  loss,  and  no  more,  whether  claimed  as 
vindictive  damages  or  otherwise.  If  the  negli- 
gence were  so  gross  as  to  raise  a  presumption 
of  malice,  then,  according  to  the  law  of  the 
authorities  in  the  text,  I  suppose  it  would  be 
a  case  for  exemplary  or  vindictive  damages. 
But  whether  the  principle  of  absolute  compen- 
sation has  been  adopted  or  not  by  the  courts 
of  Massachusetts,  it  is  certain  that  it  has  been 
systematically  advanced  by  two  very  distin- 
guished writers  in  that  State.  Mr.  Metcalf, 
the  reporter,!  in  an  able  and  ingenious  article, 
3d  Amer.  Jur.  387  and  313,  first,  I  believe, 
advanced  the  theory  that  the  Anglo-American 
law  does  not  admit  of  any  other  than  compen- 
satory damages,  or  in  his  own  words,  "  that 
the  defendant  ought  not  to  pay  more  than  the 
plaintiff  is  entitled  to  receive."  And  Mr. 
Greenleaf,  in  his  recent  work  on  Evidence,  has 
adopted  this  view  to  its  fullest  extent.  What- 
ever may  be  the  true  principle  of  the  matrer, 


1  Since  judge  of  the  Supreme  Court  of  the  State.  —  Ed. 


528 


ACTIONS    FOR    TORTS. 


[CH.    XVIII. 


[4GG]       In  these  Actions   all  Circumstances   of  Aggravation 


it  seems  to  me  not  difficult  to  sliow  that  the 
tlieoiy  ot"  coiiipcusiitioii  is  not  the  theory  of 
our  hiw. 

Mr.  Greenleaf  says,  vol.  ii.  p.  209,  "  that  the 
damages  should  be  precisely  commensurate 
■with  the  injury,  neither  more  nor  less."  This 
language  certainly  is  in  direct  conflict  with 
the  whole  system  of  damages  in  cases  of  con- 
tract ;  and  I  apprehend  that  the  denial  of  the 
right  to  vindictive  damages  is  equally  unten- 
able. In  addition  to  the  authorities  which  I 
have  cited  in  the  text,  how  is  this  position  to 
be  reconciled  with  the  imiform  language  of 
the  courts,  on  motions  for  new  trials  in  hard 
actions,  that  they  will  not  interfere  unless  the 
verdict  be  evidently  the  result  of  corruption, 
prejudice,  or  passion  ?  The  bench  has  uniformly 
refused  to  limit  the  damages  to  their  own  idea 
of  compensation.  There  is  a  cloud  of  cases 
going  to  show  conclusively,  that  although  the 
court  are  entirely  satisiied  that  the  damages 
are  excessive,  and  altogether  beyond  a  com- 
pensation for  the  actual  loss  sustained,  they 
will  not,  on  motion  for  a  new  trial,  interfere 
with  the  finding,  unless  the  verdict  is  so  ex- 
travagant as  to  bear  evident  marks  of  preju- 
dice, passion,  or  corruption.  Sharpe  v.  Erice, 
2  W.  Black.  942  ;  Benson  v.  Frederick,  3  Burr. 
1845;  Dubberly  v.  Gunning,  4  T.  R.  651; 
Sargent  v.  Deniston,  5  Cow.  R.  106  ;  Graham 
on  New  Trials,  410,  et  seq. ;  Buller's  N.  P. 
327. 

In  Thurston  v.  Martin,  5  Mason,  497,  on  the 
Rhode  Island  cii'cuit,  w'here  a  motion  was 
made  for  a  new  trial  on  the  ground  of  exces- 
sive damages.  Story,  J.,  said,  "  The  damages 
are  certainly  liigiier  than  what,  had  I  sitten 
on  the  jury,  I  should  have  been  disposed  to 
give,  and  I  shoiild  now  be  better  satisfied  if 
the  amount  had  been  less ;  "'  but  ou  the 
ground  that  "  nothing  appcai'cd  inconsistent 
with  an  honest  exercise  of  judgment,"  the 
motion  was  dejiied.  See  also,  Wiggin  v.  Cof- 
fin, 3  Story  Rep.  1  ;  and  Fisher  v.  Patterson, 
14  Ohio,  418. 

Again,  Mr.  Greenleaf  admits,  224,  "  That 
where  an  evil  intent  has  manifested  itself  in 
arts  and  circumstances  accompanying  the  prin- 
cipal transaction,  they  constitute  part  of  the 
injuiy;"  and,  221,  "that  the  defendant's 
wealth  may  be  given  in  evidence."  To  admit 
testimony  of  this  kind  —  to  deny  the  power  of 


the  court  to  adjust  the  verdict  according  to  the 
princi])le  of  compensation,  and  still  to  insist 
that  the  jury  are  bound  to  give  a  verdict 
strictly  commensurate  with  the  injury,  seem 
to  me  practically  incompatible  and  inconsis- 
tent propositions. 

Nor,  I  confess,  do  I  understand  the  wisdom 
of  the  proposed  rule  :  in  cases  of  tort,  the  suit 
at  law  ap])ears  to  have  ptiblic  as  well  as  pri- 
vate ends  in  view ;  I  can  see  no  reason  why 
the  defendant  should  not,  in  a  civil  suit,  be 
punished  for  his  act  of  fraud,  malice,  or  oppres- 
sion, nor  why  the  pecuniary  mulct  Avhich  con- 
stitutes that  punishment  shovikl  not  go  into 
the  pockets  of  the  plaintiff,  instead  of  the  cof- 
fers of  the  State.  A  strong  analogy  will  be 
found  in  qui-tam  actions.  Any  attempt  to 
limit  the  inquiry  of  the  jury,  in  cases  of  this 
description,  to  a  strict  measure  of  compensa- 
tion, will  be,  I  think,  to  institute  an  investiga- 
tion of  a  character  distressingly  metaphysical, 
and  utterly  impracticable. 

Mr.  Chancellor  Kent,  in  his  Commentaries, 
part  4,  sec.  xxiv.  vol.  i.  618,  7th  ed.  1851, 
thus  reviews  and  decides  this  controversy : 
"In  the  Law  Reporter,  April,  1847,  there  is 
an  elaborate  review  of  the  cases  in  matters  of 
tort,  on  the  subject  of  exemplary  damages, 
endeavoring  to  show  that  the  decisions  do 
not,  on  a  strict  examination  and  construction 
of  the  lang-uage  of  them,  amount  to  authori- 
ties for  going  beyond  compensatory  damages. 
On  this  subject  it  appears  to  me  that  the 
conclusions  in  Mr.  Sedgwick's  treatise  are 
well  Marranted  by  the  decisions,  and  that 
the  attempt  to  exclude  all  consideration  of 
the  malice  and  wickedness  and  wantonness  of 
the  tort,  in  estimating  a  proper  compensa- 
tion to  the  victim,  is  impracticable,  visionary, 
and  repugnant  to  line  feelings  of  social  sym- 
pathy." 

I  take  pleasure  in  recording  the  approbation 
of  an  eminent  man,  whom  it  is  a  happiness  to 
have  known  ;  whose  life  was  one  of  nninter- 
rupted  and  useful  activity  ;  and  whose  old  age 
presented  one  of  those  beautiful  pictures  that 
we  are  sometimes  permitted  to  behold  —  as 
satisfied  in  its  retrospect  as  the  imperfections 
of  humanity  allow ;  as  hopeful  of  the  future 
as  an  unwavering  confidence  in  a  higher  power, 
and  a  consciousness  of  faculties  neither  wasted 
nor  abused,  may  warrant.^ 


1  In  the  third  edition  of  this  book  were  cited  the  following  additional  authorities  :  Hawkins 
V.  Riley,  17  B.  Monr.  (Ky.)  101  ;  Fleet  v.  Hollenkemp,  13  Ibid.  219;  Kountz  v.  Brown,  16 
Ibid.  577  ;  Hair  v.  Little,  28  Ala.  236  ;  Roberts  v.  Heim,  27  Ibid.  678  ;  Porter  v.  Seller,  23 
Penn.  St.  424 ;  Robinson  v.  Rupert,  Ibid.  523  ;  Grant  v.  McDonough,  7  La.  Ann.  447  ;  Cook 
V.  Garza,  9  Tex.  358 ;  Graham  v.  Hober,  5  Tex.  141  ;  Cole  v.  Tucker,  6  Ibid.  266  ;  Murphy  v. 
Grain,  12  Ibid.  297  ;  Birchard  v.  Booth,  4  Wis.  67  ;  McCoy  v.  Danlev,  20  Penn.  St.  85  ;  Clark 
V.  Beales,  15  (Ark.)  Barb.  452 ;  McWilliams  v.  Bragg,  3  Wis.  424  ;  Hill  v.  The  New  Orleans, 
Opelousas,  and  Great  Western  Railroad  Company,  11  La.  Ann.  292;  Sherman  v.  Dutch,  16 
111.  283;  Wolff  V.  Cohen,  8  Rich.  (S.  C.)  L.  144;  Milburn  v.  Beach,  14  Mo.  104;  Sutton  v. 
Mancieville,  1  Cr.  C.  C.  R.  187  ;  Bradley  v.  Morris,  Busbee's  (N.  C.)  R.  395  ;  Smith  v.  Eakin,  2 
Sneed's  (Tenn.)R.  456;  Walker  v.  Borland,  21  Mo.  289;  Phclim  v.  Kendcrlinc,  20  Penn.  St. 
354;  McAfee  u.  Croflbrd,  13  How.  447  ;  Day  v.  Woodworth,  Ibid.  363;  Seymour  y.  McCor- 


CH.   XVIII.]  EXEMPLARY   DAMAGES.  529 

GO  TO  THE  Jury.  —  The  necessary  result  of  this  rule  is,  that  all 

niic'k,  10  Iliid.  480  ;  Major  v.  rulliam,  3  Daua,  582 ;  Sanborn  v.  Ncilson,  4  N.  H.  501  ;  Sin- 
clair r.  'I'arliox,  'J  N.  ]1.  1:35. 

Also  tiK'  t'ollowin;;-  authorities  in  New  York  :  Woodward  v.  Paine,  15  Johns.  493  ;  Dain  v. 
Wycotf,  3  Seld.  191  (in  wiiii'h,  however,  the  jiropriety  ofallowin<^-  sueli  danuij,a^s  was  denied  by 
Gardiner,  J.,  individually,  the  remainder  of  the  eourt  expressing  no  opinion  on  the  i)oint)  ; 
Taylor  v.  Ciiureli,  4  Ibid.  4,")2,  in  whieh  the  prineiple  of  these  damages  was  sustained  by  ]\Ir. 
Justice  Jewett  in  an  opinion  reviewing  the  authorities,  and  by  a  majority  of  the  jmlges  who 
passed  on  the  (juestion.  Opinion  of  Allen,  J.,  in  Bush  v.  Prosser,  1  Kern.  356  ;  S.  C.  below, 
1  E.  J).  Smith's  C.  P.  R.  292  ;  Hicks  v.  Poster,  13  Barb.  663. 

In  the  two  last  editions  also  were  })ublished,  in  an  appendix,  two  articles  from  the  Law  Re- 
porter for  April  and  June,  1847,  one  by  the  late  Professor  GreCnleaf  maintaining  his  denial  of 
the  doctrine  of  exemplary  damages,  and  the  other  a  rejoinder  by  the  author  of  this  work. 

But,  notwithstanding  the  hesitation  shown  in  some  of  the  less  recent  cases  in  which  the 
questit)n  arose  in  New  York,  and  pi'rhaps  elsewhere,  in  reeogniicing  the  prineiple  of  exemplary 
danniges  to  the  full  extent  claimed  in  the  te.xt  as  law  (see  Whitney  v.  Hitchcock,  4  Dcnio,  463; 
Hicks  V.  Foster,  13  Barb.  663  ;  Covert  v.  Gray,  34  Howard's  Pr.  R.  450  ;  Dain  v.  Wycoft;  3  Seld. 
7  N.  Y.  191,  opinionof  Gardner,  J.),  the  doctrine  is  now  too  tirmlyrooted  in  our  jurisprudence 
to  admit  of  further  serious  discussion.  The  distinction  between  these  and  other  damages  is 
inetfaeeabiy  stamped  on  the  very  language  of  the  law.  We  think  it  therefore  unnecessary  to 
republish  these  controversial  articles.  But  in  addition  to  the  preceding  aiithorities,  we  here 
cite,  from  the  decisions  on  the  subject  which  flood  our  late  reports,  recognizing  the  established 
doctrine,  enough,  we  think,  to  justify  our  statement  in  its  full  extent.  In  each  case  the  nature 
of  the  action  is  given  :  Slander — Knight  v.  Foster,  39  N.  H.  576  ;  Hosley  v.  Brooks,  20  III. 
115;  Guard  v.  Risk,  11  Ind.  156.  Libel  — Hunt  v.  Bennet,  19  N.  Y.  173;  Philadelphia, 
Wilmington,  and  Baltimore  R.  R.  Co.  v.  Quigley,  21  How.  (U.  S.)  202;  recognizing  the  prin- 
ciple as  established  by  Day  v.  Woodworth,  13  How.  (U.  S.)  363.  Deceit  —  Nye  v.  Merriam,  35 
Vt.  438;  Piatt  v.  Bromi,  30  Conn.  336  ;  Millison  v.  Hoch,  17  Ind.  227.  (But  in  regard  to 
actions  for  fraudulent  representations,  doubts  have  been  expressed  whether  the  doctrine  of  exem- 
plary damages  shonld  be  applied.  Barber  v.  Ivilbourn,  16  Wis.  485.  It  docs  not  apply,  in  the 
opinion  of  the  Supreme  Court  of  Wisconsin,  where  nominal  damages  only  have  been  sustained 
by  the  grantee  of  real  estate,  although  the.  estate  was  purchased  in  consequence  of  his  false 
representation.  Ibid.)  Fraud  —  Oliver  v.  Chapman,  15  Tex.  400.  Trespass  to  real  estate — 
Bull  V.  Griswold,  19  111.  631  ;  Perkins  v.  Towle,  43  N.  H.  220.  Trespass  q.  c./  — Green  & 
Col.  R.  Co.  V.  Partlow,  14  Rich.  Law  (S.  C),  237.  Trespass  —  Walker  v.  Wilson,  8  Bosw. 
(N.  Y.)  586  ;  Dibble  v.  Morris,  26  Conn.  416;  Nagle  v.  Mtillison,  34  Penn.  St.  48  ;  Bronson 
V.  Green,  2  Duvall  (Ky.),  234;  Dorsey  v.  Manlove,  14  Cal.  553;  Young  t-.  Mertens,  27  Md. 
114.  Killing  slave  —  Polk  v.  Fancher,  1  Head  (Tenn.),  336  ;  Champion  v.  Vincent,  20  Tex. 
811  ;  Hedgepeth  v.  Robertson,  18  Tex.  858.  Assault  and  battery  —  Foote  v.  Nichols,  28  111. 
486  ;  Roberts  v.  Mason,  10  Ohio  (N.  S.),  277  ;  Ously  v.  Harden,  23  111.  403  ;  Goetz  v.  Ambs, 
27  Mo.  (6  Jones)  28.  Trespass  vi  et  armis  —  Hawk  v.  Ridgway,  33  111.473.  Personal  in- 
jurv  —  Hopkins  v.  Atlantic  and  St.  Lawrence  R.  R.  Co.  36  N.  H.'9  ;  Chiles  v.  Drake,  2  Mete. 
(Ky.)  146  ;  Etchberry  v.  Levielle,  2  Hilt.  (N.  Y.  C.  P.)  40 ;  Bait.  &  Ohio  R.  R.  Co.  v.  Blo- 
cher,  27  Md.  277.  Trespass  for  injuring  goods  —  Best  v.  Allen,  30  111.  30.  Wrongful  seizure 
of  goods  —  Thomas  v.  Harris  (1  F.  &  F.  69),  27  L.  J.  Exch.  353.  Seduction  —  Ball  v.  Brace, 
21  111.  161  ;  Stevenson  v.  Belknaj),  6  Clarke  (Iowa),  97  ;  Robinson  v.  Burton,  5  Harring. 
(Del.)  .335.  Breach  of  promise  and  seduction  —  Goodall  v.  Thurman,  1  Head  (Tenn.),  209. 
Case  for  malicious  prosecution  —  Burnett  v.  Read,  51  Penn.  St.  190.  Obstructing  right  of 
way  —  Windham  v.  Rhame,  11  Rich.  Law  (S.  C),  283  ;  Jefcoat  v.  Knotts,  Ibid.  649  ;  Zeigier 
V.  Braddy,  Ibid,  557.  Tort  against  common  carrier  —  Heirn  v.  McCaughan,  32  Miss.  (3 
George)  17  ;  Peoria  Bridge  Ass'n  v.  Loomis,  20  111.  235  ;  New  Orleans,  Jackson,  and  Great 
Northern  R.  R.  Co.  v.  Hurst,  36  Miss.  (7  George)  660;  Southern  R.  R.  Co.  v.  Kendrick,  40 
Miss.  374.  Willful  suing  out  of  attachment  —  Campbell  v.  Chamberlain,  10  Iowa,  337  ;  lloyd 
V.  Hamilton,  33  Ala.  235  ;  Kolb  v.  Bankhead,  18  Tex.  228.  Trover— Mowry  v.  Wood,  12 
Wis.  413  ;  and  case  for  gross  negligence,  3  Head  (Tenn.),  530,  with  count  in  trover.  Gross 
negligence —  Cochran  v.  Miller,  13  Iowa,  128. 

In  the  case  of  Day  v.  Woodworth  (13  How.  363),  in  the  Supreme  Court  of  the  United  States, 
Mr.  Justice  Grier,  in  delivering  the  opinion  of  the  court,  used  the  following  language :  "  It 
is  a  well  established  principle  of  the  common  law,  that  in  actions  of  trespass  and  all  actions  on 
the  case  for  torts,  a  jury  may  inflict  what  arc  called  cxemplaiy,  punitive,  or  vindictive  dam- 
ages u])on  a  defendant,  having  in  view  the  enormity  of  his  oifense  rather  than  the  measure  of 
comi)ensation  to  the  plaintiff.  We  are  aware  that  the  propriety  of  this  doctrine  has  been 
questioneil  by  some  writers  ;  but  if  repeated  judicial  decisions  for  more  than  a  century  are  to 
be  received  as  the  best  exposition  of  what  the  law  is,  the  question  will  not  admit  of  argument. 
By  the  common  as  well  as  by  statute  law,  men  are  often  punished  for  aggravated  misconduct 
or  lawless  acts  by  means  of  a  civil  action,  and  the  damages  inflicted  by  way  of  penalty  or  pun- 
ishment given  to  the  party  injured.  In  many  civil  actions,  such  as  libel,  slander,  seduction, 
34 


530  ACTIONS    FOR    TORTS.  [CH.    XVIII. 

the  attendant  circumstances  of  aggravation  which  go  to  char- 

etc,  the  wnjiii,'  done  to  the  phiintifTt'is  inca]i;ible  of  beinj;:  measured  by  a  money  stamhxrd  ;  and 
the  damages  assessed  depeud  on  the  eh-emustaiiees  showiiij^-  tlie  degree  of  moral  turpitude  or 
atroeity  of  the  defeudaut's  couduct,  aud  may  properly  be  termed  exemplary  or  viudictive  rather 
than  com])cnsatory. 

"  In  actions  of  trespass,  where  the  injury  has  been  wanton  and  malicious,  or  gross  and  out- 
rageoits,  courts  permit  juries  to  add  to  the  measured  compensation  of  the  plaintiff,  which  he 
would  hare  been  entitled  to  recover  had  the  injury  been  inflicted  without  design  or  intention, 
something  further  by  way  of  punishment  or  example,  which  has  sometimes  been  called  '  smart 
money.'  This  has  been  always  left  to  the  discretion  of  thejuiy;  as  the  degree  of  punishment 
to  be  thus  inflicted  must  depend  on  the  peculiar  circumstances  of  each  case." 

Indeed,  in  Massachusetts,  where  the  principle  was  sternly  contested  by  eminent  jurists  (2 
Greenl.  on  Ev.  209  ;  3  Am.  Jur.  387),  it  has  i-eceived  an  implied  legislative  I'ecognition  by  the 
legal  provision  that  where  an  action  of  tort,  which  by  the  laws  of  that  State  survives  (G.  S. 
1860,  648),  is  "commenced  or  prosecuted  against  the  executor  or  administrator  of  the  person 
originally  liable,  the  plaintiflp  shall  be  entitled  to  recover  only  for  the  value  of  the  goods  taken, 
without  any  vindictive  or  exemplary  damages,  or  damages  for  any  alleged  outrage  to  the  feel- 
ings of  the  injured  party."  G.  S.  Mass.  1860,  ch.  128,  §  1,  p.  651.  And  the  present  learned 
and  candid  Dane  Professor  of  Law  in  Harvard  College  substantially  admits  its  existence.  3 
Parson  Con.  5th  ed.  170.  Nor  are  the  English  courts  behind  our  own  in  the  continued 
sanction  of  the  doctrine,  which  is  there  applied  to  actions  for  consequential  damages  as  well  as 
for  trespasses.  Emblen  v.  Mvers,  6  H.  &  N.  54 ;  S.  C.  30  L.  J.  R.  (N.  S.)  Exch.  71  ;  S.  P. 
Bell  V.  The  Midland  Counties  R.  Co.  4  L.  T.  R.  (N.  S.)  293  (pp.  Willes  &  Byles,  JJ.). 

Yet,  though  the  authorities  thus  exuberantly  justify  the  author,  it  is  nevertheless  true  that 
the  allowance  of  punitive  damages  in  a  civil  suit  is  a  wide  departure  from  the  principle  on 
which,  both  in  Britain  and  the  United  States,  damages  in  such  suits  are  awarded,  which,  as  we 
have  repeatedly  seen,  in  theory  at  least,  is  compensation.  To  adjust  in  a  civil  controversy 
between  man  and  man  the  claims  of  society  at  large,  or  in  such  a  suit  to  forestall  or  encroach 
on  the  action  of  the  tribunals  which  it  has  established  for  the  preservation  of  order,  were  it 
a  new  proposition,  would  strike  the  Anglo-Saxon  lawyer  as  an  absurdity.  Yet,  beginning 
with  the  wide  range  always  given  to  the  jury  in  actions  of  tort  (see,  for  illustration  in  New 
York,  the  comparatively  eai'ly  cases  of  Coleman  v.  Southwick,  9  J.  R.  45  ;  Hoyt  v.  Gelston, 
13  J.  R.  141  ;  Woodward  v.  Paine,  15  J.  R.  493),  and  fostered  by  the  justest  instincts  and 
strongest  sympathies  of  our  nature,  the  doctrine  has  grown  to  the  full  manhood  of  a  dogma  of 
our  jurisprudence.  As  such  it  must  be  accepted  and  submitted  to.  If  it  be  a  subject  of  re- 
gret, no  remedy  less  radical  than  the  law-making  power  can  now  be  applied. 

But  we  do  not  think  it  is  a  subject  of  regret.  Pecuniary  indemnity  for  a  wrong  is  unsatis- 
factory at  best,  and  there  is  little  practical  harm  in  the  injured  party  getting  more  than  actual 
compensation,  if  it  be  proper  that  the  offender  should  pay  it.  There  is  a  large  class  of  offenses 
which  society  is  slow  in  punishing.  The  community  (or  those  who  represent  it  in  the  prosecu- 
tion of  such  offenses)  often  fails  to  piirsue  the  offender,  and  he  would  too  often  escape  unless 
brought  to  justice  by  the  determined  effort  which  springs  from  the  personal  sense  of  wrong. 
A  change  in  the  rule  would  therefore  be,  to  a  certain  extent,  an  irreparable  loss  to  society.  In 
many  cases  it  furnishes  the  only  practical  restraint  upon  a  trespasser,  who  would  not  be 
deterred  from  repeating  his  trespass  by  merely  trifling  or  nominal  damages. 

It  is  true  that  the  Constitution  of  the  United  States,  and  those  of  the  States  generally,  pro- 
vide that  no  person  shall  be  twice  put  in  jeopardy  for  the  same  offense  (Am'ts  to  Const.  U.  S. 
art.  5  ;  Const.  N.  Y.  1846,  art.  1,  sec.  2).  But  the  infliction  of  a  pecuniary  punishment  does 
not  conflict  with  these  provisions. 

It  is  true  also  that  the  laws  of  many  of  the  States,  as  in  New  York  (Code  of  Procedure, 
§  7),  declare  that  "  where  the  violation  of  a  right  admits  of  both  a  civil  and  a  criminal  remedy, 
the  right  to  prosecute  the  one  is  not  merged  in  the  other  "  {post,  471,  note),  and  there  is  there- 
fore a  possibility  that  an  offender  may  be  subjected  to  a  double  fine  for  the  same  offense.  For 
this  reason,  in  the  States  of  Massachusetts  and  Indiana,  the  doctrine —  it  can  hardly  be  called 
a  rule  —  of  exemplary  damages  is  held  not  to  apply  to  actions  for  wrongs  which  are  also 
criminal  offenses.  Austin  v.  Wilson,  4  Cush.  273 ;  Taber  v.  Hutson,  5  Ind.  322  ;  Butler  v. 
Mercer,  14  Ind.  479;  Nassamen  v.  Rickert,  18  Ind.  350;  Humphreys  v.  Johnson,  20  lud.  190. 
In  North  Carolina  evidence  of  a  conviction  and  fine  paid  may  be  given  for  the  purpose  of 
mitigating  exemplary  damages,  but  does  not  bar  the  claim  altogether  as  a  matter  of  law. 
Smi'thwith  v.  Ward,"7  Jones' L.  R.  (N.  C.)  64  ;  Johnston  v.  Crawford,  Phillips  L.  R.  (N.  C.) 
342. 

Such  a  distinction,  however,  is  not  generally  observed.  Cook  v.  Ellis,  6  Hill,  466  (supra, 
462);  Cole  v.  Tucker,  6  Tex.  266 ;  Wilson  v.  Middleton,  1  Cal.  54;  Corwin  r.  Walton,  18 
Mo.  71.  And  it  has  been  held  that  even  after  a  criminal  conviction,  vindictive  damages  may 
be  given  in  a  civil  action  against  the  offender.  Roberts  v.  Mason,  10  Ohio  (N.  S.),  277.  And 
in  the  case  of  Fry  c.  Bennett,  4  Duer,  247  (N.  Y.  Superior  Court),  which  was  an  action  ot 
libel,  Mr.  Justice  Hoffman  maintained,  with  much  force,  that  there  was  a  clear  difference  be- 


CII.    XVIII.]  EXKMPLAIIY    DAMAGES.  531 

acterize  the  wrong  complained  of,  may  be  given  in  evidence ; 

twcen  the  particuhir  injury  to  a  plsiiutiff  (indepcnileiitly  of  his  pecuniary  damaj^c)  hy  the 
dotcndant's  wronjiful  act,  and  the  injury  caused  by  tlie  same  act  to  society  at  iarj^e,  contending 
tliat  penalties  for  each,  aItiiouy;h  both  pecuniary,  might  be  inflicted  without  injustice  to  the 
defendant. 

We  think,  nothwithstanding  a  disposition  in  legal  tribunals  to  observe  a  certain  measure  in 
these  eases,  by  directing  the  jury  to  eonsider  separately  how  much  should  he  allowed  for 
conipensation  and  how  much  intlieted  for  punishment,  although  the  two  amounts  are  l)lended 
in  the  verdict,  the  doctrine  in  its  more  extended  application  is  tixed  and  universal.  "For  the 
legal  wrong,"  says  Mr.  C.  J.  Lowry,  of  the  Supreme  Court  of  Pennsylvania,  in  charging  the 
jury  in  the  case  of  Hodgson  v.  Millward,  .3  Grant's  Cases,  406,  "  eomj)eiisation  is  the  measure 
of  redress.  For  the  moral  wrong,  the  recklessness  of  the  act,  the  personal  malice  with  which 
it  is  done,  the  violence  and  outrage  attending  it,  for  this  you  are  authorized  to  allow  cxemi)lary 
damages." 

There  is,  however,  an  inclination  in  the  courts  not  to  extend  the  principle,  as  conflicting 
■with  the  rule  of  compensation.  Thus,  in  Malone  v.  Murphy,  2  Kansas,  250,  the  Supreme 
Court  of  Kansas  say,  "  We  would  rather  adopt  the  compensatory  theory,  believing  it  to  be 
more  logically  correct,  but  the  other  having  been  long  established,  recognized,  and  acted  on  by 
enlightened  courts,  we  are  not  disposed  to  change  it."  And  while  the  subject  of  exem])lary 
damages  is  far  from  reduced  to  rule,  and  indeed  from  its  nature  is  not  susceptible  of  a  definite 
one,  yet  it  will  be  continually  seen  that  the  courts,  sensible  of  the  danger,  from  the  absence 
of  a  standard  of  measm-ement  in  such  cases,  endeavor  to  find  one,  whenever  by  painstaking 
search  they  can  do  so.  Thus  loss  of  profit,  ascertainable  damage  from  loss  of  credit,  and 
other  remote  or  secondary,  but  still  definable  damages,  are  sometimes  allowed  on  this  ground 
onlv,  thus  apparently  giving,  in  cases  where  the  pecuniary  results  of  a  wrong  are  more  or  less 
traceable,  a  rule  for  this  description  of  damages,  where  otherwise  none  would  exist.  See 
Selden  v.  Cashman,  20  Cal.  56. 

So  in  an  action  for  deceit,  the  rule  applicable  to  warranties  is  abandoned,  but  there  is 
nominally  still  a  measure  of  the  pecuniary  retribution  which  embraces  and  is  defined  by  all 
those  dam.ages  which  naturally  flow  from  the  deceit.  Sharon  v.  Mosher,  17  Barb.  520  ; 
Thompson  v.  Burgey,  36  Penn.  403. 

So  in  Brown  v.  Chadsey,  39  Barb.  253,  which  was  an  action  for  false  imprisonment,  the 
court  refused  to  allow  the  jury  to  carry  these  damages  to  an  arbitrary  extent. 

The  cases,  also,  where  counsel  fees  are  allowed  in  actions  of  tort  illustrate  the  point.  See 
ante,  93,  note ;  also  The  New  Orleans,  Jackson,  and  Great  Northern  R.  R.  Co.  v.  Albritton, 
38  Miss.  242.  So  the  costs  of  a  second  suit,  which  was  necessary  in  consequence  of  the 
defendant's  wrongful  act,  are  sometimes  allowed  in  cases  where  the  wi'ong  was  willful,  which 
would  else  be  too  remote.  Palmer  v.  Gallup,  16  Conn.  555,  post,  ch.  21.  And  in  Crouch  v. 
Great  Northern  Railroad  Co.  11  Exch.  742  (ante,  362,  note  1),  the  question  was  suggested  by 
Baron  Martin  whether,  in»a  case  where  special  damages  claimed  by  a  carrier  for  injury  to  his 
business  in  consequence  of  the  refusal  of  the  railway  company  to  carry  packed  parcels  for  him, 
were  too  remote  a  consequence  of  the  wrong  to  be  allowed  nnder  a  declaration  which  merely 
claimed  damages  for  the  injury  without  any  averment  of  willfulness,  such  damage  might  not 
have  been  recovered  under  a  diiclaration  which  chai-ged  a  willful  breach  of  the  law  by  the 
defendants,  with  a  view  to  getting  a  monopoly  and  desti-oying  the  plaintiff's  business.  The 
punishment  for  the  wrong  should  of  course  be  proportioned  to  its  extent,  and  therefore  all  the 
obvious  consequences  of  the  injury  should  be  considered  by  the  jury  even  where  there  is  no 
question  of  compensation.  But  we  think,  as  has  been  stated  with  reference  to  counsel  fees, 
that  the  attempt  to  mix  compensation  as  a  distinct  element  in  these  damages  is  impracticable, 
and  that  they  must  be  placed  on  the  ground  only  of  punishment  for  the  wrong  done  and  an 
example  to  prevent  its  repetition,  and  that  the  consideration  of  the  pecuniary  injury,  whether 
immediate  or  remote,  as  a  measure  of  the  recovery,  belongs  only  to  the  question  of  compensa- 
tion. The  occasional  allowance  of  consequential  damages  as  a  punishment  amounts,  we  think, 
as  authority,  to  no  more  than  this  —  that  the  jury  may  give  them  if  so  inclined.  But  as  they 
could  give  an  equal  sum  if  such  pecuniary  consequences  did  not  follow  the  wrong,  and  even 
where  they  do  follow,  may  give  in  their  discretion  a  greater  or  less  sum,  these  consecpiences, 
although  iliey  may  sometimes  furnish  a  satisfactory  guide  to  the  jury,  cannot  be  said  to  pre- 
scribe a  legal  measure  in  graduating  the  punishment. 

Where  an  action  of  tort  clearly  belongs  to  the  class  to  which  the  principle  of  exemplary 
damages  applies,  no  very  distinct  proof  of  the  existence  of  a  wrongful  intent  is  required  to 
justify  their  allowance.  In  an  action  by  a  father  to  recover  damages  for  the  abduction  of  his 
infixnt  child,  ^Ir.  Justice  Elmer,  in  delivering  the  opinion  of  the  Supreme  Court  of  New  Jersey, 
after  remarking  that  the  principle  of  exemplary  damages  was  "too  well  established  in  that 
State  to  admit  of  (piestion,"  said  in  reference  to  the  argument  that  "  there  must  be  fraud, 
malice,  wantonness,  or  oppression"  to  justify  them,  that  he  was  not  willing  to  concede  that  in 
actions  of  that  kind  "  the  jury  might  not  properly  look  at  all  the  Gireumstanccs,  and  apjjortion 
the  damages  to  the  actual  wrong  done  to  the  plaintiff's  feelings,  and  paternal  affections  and 


532  ACTIONS    FOR    TORTS.  [CU.    XVIIL 

[467]    and   so  it  has  been  held  both  in   England  and  in  this 

rights,  without  any  j)o,sitivo  proof  of  malice  or  oppression."  Magee  v.  Holland,  3  Diilcli. 
(N.  J.)  86. 

There  is  a  want  of  precision  in  the  application  of  the  jirinciple  under  discussion  to  a  class 
of  cases  usually  mentioned  as  falling  within  it  —  namely,  cases  of  gross  negligence.  To 
sanction  it  in  these,  the  negligence,  according  to  the  more  carefully  considered  authorities, 
must  be  so  great  as  to  amount  to  recklessness  —  that  is,  to  a  degree,  where  a  generally 
malicious  or  malignant  purpose,  careless  of  consequences,  might  perhaps  be  presumed,  although 
no  hostile  purpose  were  entertained  against  an  individual.  See  Wardrobe  v.  Cala.  Stage  Co. 
7  Cal.  118;  Pickett  v.  Crook,  20  Wis.  .S.'JS;  Louisville  &  Portland  R.  R.  Co.  v.  Smith,  2 
Duvall  (K/.),  5.'56.  So  the  Court  of  Common  Pleas  for  the  City  and  County  of  New  York 
deny  that  exemplary  damages  can  be  allowed  for  gross  negligence  merely.  To  justify  them 
the  act  must  be  willful,  or  the  negligence  must  amount  to  a  reckless  disregard  of  the  safety  of 
person  or  property.  Wallace  v.  The  Mayor,  2  Hilt.  440.  And  the  commissioners  for  the  New 
York  civil  code  have  excluded  negligence  altogether,  as  a  basis  for  the  allowance  of  exemplary 
damages,  which  they  confine  to  "  cases  of  oppression,  fraud,  or  malice,  actual  or  presumed." 
Proposed  Civil  N.  Y.  Code,  §  1503.  In  Bannon  v.  Bait.  &  Ohio  R.  R.  Co.  24  Md.  108,  the 
principle  of  exemplary  damages  in  cases  of  gross  negligence  is  admitted,  but  the  court  say 
that  "  what  facts  are  sufficient  to  prove  malice  or  gross  negligence,  is  in  such  cases  the  jirovince 
of  the  court  to  determine."  This  decision  would  seem,  in  effect,  to  reverse  the  rule  it 
nominally  adopts. 

There  are  other  qvaalifications  to  the  rule.  Thus  a  principal  cannot  be  compelled  to  pay 
exemplary  damages  for  the  fault  of  Ins  agent  (Wardrobe  v.  Stage  Co.  7  Cal.  118  ;  Hill  v.  The 
New  Orleans,  Opeloiisas,  and  Great  Western  R.  Co.  11  La.  Ann.  292),  if  it  be  neither  author- 
ized nor  ratified  by  the  principal;  (Milwaukee  and  Miss.  R.  R.  Co.  v.  Piuney,  10  Wis.  388). 
So  during  the  existence  of  sla\ery,  the  owner  of  a  slave  was  not  liable  for  exemplary  damages 
for  the  unauthorized  act  of  the  slave.  Boulard  v.  Calhoun,  13  La.  Ann.  445.  But  in  Missis- 
sippi the  rule  as  to  the  principal's  responsibility  is  othei-wise.  New  Orleans,  Jackson,  and  Great 
Northern  R.  Co.  v.  Bailey,  40  Miss.  395;  Same  v.  Hurst,  36  Miss.  (7  George)  660;  Vieksburg 
and  Jackson  R.  Co.  v.  Patton,  31  Miss.  156.  So  in  Kentucky,  in  an  action  against  a  railroad 
company  for  an  injury  caused  by  the  carelessness,  negligence,  and  iinfituess  of  its  agents,  the 
damages  are  not  confined  to  the  actual  injury.     Bowler  v.  Lane,  3  Mete.  (Ky.)  311. 

The  rules  that  actio  personalis  moritur  cum  persona,  and  that  executors  and  administrators 
sued  in  their  representative  character  are  in  general  liable  only  to  the  extent  of  their  assets,  pre- 
vent the  rccoveiy  of  any  damages  against  executors  or  administrators  for  the  tortious  acts  of 
their  decedents,  except  in  such  cases  as  are  provided  by  special  statute.  See  Mass.  R.  S. 
1860,  p.  695,  already  cited.  And  as  they  can  bring  an  action  only  in  respect  of  an  injixry  to 
the  personal  estate  of  their  decedent,  the  damages  recoverable  by  them  must  be  measured  by 
such  injury,  and  exemplary  damages  cannot  be  recovered.  Lockier  v.  Paterson,  1  C.  &  K.  271. 
See /JOS?,  552,  note. 

Again,  the  fact  that  a  defendant  in  doing  the  act  complained  of,  was  actuated  by  malice 
against  a  third  person  not  a  party  to  the  suit,  has  been  said  to  atibrd  no  ground  for  vindictive 
damages.  Wood  v.  Barker,  1  Ala.  Select  Cases,  311.  Nor  can  vindictive  damages  be  allowed 
where  the  wrong  results  fi-om  an  error  of  judgment  only.  Jackson  v.  Schmidt,  14  La.  Ann. 
806.  Add  in  these  damages  the  measure,  such  as  it  is,  which  punishment  and  example  pre- 
scribe, must  not  be  overstepped,  and  no  consideration  should  l)e  presented  by  the  court  to  the 
jury  which  should  lead  them  to  increase  them  beyond  what  they  wovild  give  for  the  sake  of  the 
punishment  and  the  example.  In  an  action  of  assault  and  battery,  therefore,  it  was  held  by 
the  Supreme  Court  of  Iowa  erroneous  to  tell  the  jury  they  could  increase  the  amount  of  the 
verdict  "  to  manifest  the  detestation  in  which  the  act  is  held  by  them."  Hendrickson  v.  Kings- 
bury, 1867,  N.  Y.  Transcript,  May,  1867,  fi-om  Western  Law  Journal.  On  the  one  hand  the 
jury  must  not  be  instnicted  to  give  vindictive  damages.  Hawk  v.  Ridgway,  33  111.  473  ;  South- 
ern R.  R.  Co.  V.  Heudrick,  40  Miss.  374.  Nor  on  the  other,  must  they  be  restricted  by  a  di- 
rection not  to  give  them,  if  they  believe  from  the  evidence  that  the  defendant's  trespass  was 
malicious,  and  perpetrated  in  a  rude  and  insulting  manner.  De  Vaughn  v.  Heath,  1  Ala.  Se- 
lect Cases,  523.  And  where  the  highest  value  of  a  house  torn  down  and  removed  by  the  de- 
fendant, testified  to  by  any  witness,  was  $250,  and  the  court  instructed  the  jury  that  if  they 
foiind  it  a  case  for  exemjilary  damages,  they  might  find  a  verdict  for  any  amount  not  exceeding 
the  sum  laid  in  the  declaration,  which  was  $2,000,  and  the  jurj^  found  a  verdict  for  $567,  it 
was  set  aside  on  the  ground  that  this  instruction  might  have  wrongly  influenced  them  as  to  the 
amoitnt  of  damages,  as  a  verdict  for  the  amount  laid  in  the  declaration  would  have  warranted 
the  inference  of  prejudice,  partiality,  or  corruption  on  their  part.  Bryan  v.  Acee,  27  Geo.  87. 
But  where,  in  the  opinion  of  the  court,  the  evidence  is  insufficient  to  show  that  a  trespass  is 
malicious,  it  may  instruct  the  jury  that  exemplary  damages  cannot  be  recovered.  Selden  v. 
Cashman,  20  Cal.  56. 

So  in  Louisiana,  in  cases  proper  for  exemplary  damages,  the  jury  are  still  under  the  control 
of  the  court  in  regard  to  the  extent  to  which  they  may  go,  and  in  an  action  for  malicious  ar- 


CU.    Xnil.]  EXEMPLARY    DAMAGES.  /j33 

country  *  ^     Indeed,  it  may  be  said  tliat  in  cases  of  tort,  where 

*  Briicf;;inlle  V.  Orforil,  4  Maul.  &  Scl.  77;  Batcmau  v.  Goodyear,  12  Conn.  575;  Smith 
V.  Lusli,  4  Bibb,  502. 

rest  and  imprisonment,  tlie  eonrt  saiil,  "  Exemplary  damages  shonld  nevertlieless  be  eommcn- 
snrate  to  the  nature  of  tin'  oU'ense,  and  when  extravagant  danniges  are  allowed,  they  will  be 
redueed  to  the  jjrojier  staiulard."  Burkctt  v.  Lanata,  15  La.  Ann.  337.  And  see  Fitzgerald 
i:  Honlat,  13  La.  Ann.  116. 

In  general,  however,  from  the  natnrc  of  the  subject,  in  cases  proper  for  exemplary  damages, 
it  would  seem  imjiraetieable  to  set  any  bounds  to  the  discretion  of  the  jury,  though  in  cases 
where  the  wrong  done,  though  with  nnilieious  intent,  is  greatly  disj)roportioned  to  the  amount 
of  the  verdict,  the  court  may  exercise  the  ]><)wer  it  always  possesses  to  grant  a  new  trial  for  ex- 
cessive dannines.  See  Cortin  v.  Cuthn,  4  Mass.  1.  The  case  of  the  New  Orleans,  Jackson,  and 
Great  Northern  R.  R.  Co.  v.  lliirst,  30  Miss.  7  George  (supra),  would  seem  to  carry  the  i)rin- 
ciple  of  exemjdary  damages  to  its  extreme  limit,  if  it  have  a  limit,  or  rather  if  rightiy  decided, 
to  show  that  there  is  none.  The  jury  having,  in  that  case,  found  a  verdict  of  $4,500  against 
a  railroad  company  for  the  misconduct  of  a  conductor  iu  carrying  the  plaintiff  four  hundred 
yards  beyond  the  station  aiul  refusing  to  return,  so  that  to  avoid  being  taken  to  the  next  sta- 
tion, he  had  to  walk  back  carrying  his  valise,  the  court,  while  regretting  the  rigor  of  the  jury, 
refused  to  set  aside  the  verdict,  saying  that  the  law  in  such  cases  furnished  "  no  legal  measure- 
ment save  the  discretion  of  the  jury."  In  this  case,  we  think,  with  deference,  that  the  verdict 
might  with  great  propriety  have  been  set  aside.  Tlic  amount  warranted  the  presumption  of 
undue  bias. 

.  The  terms  "  vindictive,"  "  punitive  "  or  "  punitory,"  and  "  exemplary,"  are  indifferently 
employed  in  describing  these  damages.  But  in  a  late  case  in  Missouri,  the  court,  while  enter- 
taining some  misgivings  as  to  any  allowance  of  damages  beyond  compensation,  suggest  a  dis- 
tinction between  "  exemplary  "  damages,  and  those  whicli  are  "  vindictive  "  or  "  punitory." 

The  case,  which  was  decided  in  August,  1865,  was  an  action  to  recover  damages  from  the 
defendants  for  conspiring  together  and  unlawfully  breaking  open  the  plaintiff's  store  by  armed 
force,  and  taking  various  Wiigon  loads  of  clothing.  The  court,  holding  that  besides  the  value 
of  the  goods  the  plaintiff  was  entitled  to  compensation  for  the  injury  sustained  by  the  fears  of 
bodily  harm  and  danger  to  his  life,  sustained  the  finding  of  the  jury  for  an  amount  exceeding 
the  value  of  the  goods,  on  the  ground  that  the  verdict  did  not  go  beyond  an  adequate  recom- 
pense for  the  whole  injury.  The  judge  at  Nisi  Prius  had  charged  the  jury  that  they  might,  in 
addition  to  the  value  of  the  goods,  "  also  find  such  further  sum  as  to  them  might  seem  right 
in  the  way  of  exemplary  danuiges,"  not  exceeding  the  amount  claimed.  This  instruction  re- 
ceived the  sanction  of  the  full  court,  but  in  giving  it  they  drew  the  distinction  we  have  men- 
tioned. Exemplary  damages  they  apparently  consider  within  the  limits  of  compensation, 
defining  them  as  follows:  "Exenijilury  damages  would  seem  to  mean  in  the  ordinary  and 
proper  sense  of  the  word  such  damages  as  would  be  a  good  round  compensation  and  an  ade- 
quate recompense  for  the  injury  sustained,  and  such  as  might  serve  for  a  wholesome  example 
to  others  in  like  cases."  The  question  of  "  merely  vindictive  or  punitory  damages  by  way  of 
punishing  the  defendant "  they  did  not  consider  to  have  necessarily  arisen  in  the  case,  and 
added  that  they  were  "  not  to  be  understood  as.  sanctioning  a  principle  which  by  the  nature  of 
it  woukl  seem  rather  to  Itelong  to  the  domain  of  criminal  than  civil  jurisprudence."  Freidcn- 
heit  I).  Edmundson,  36  Mo.  226. 

But  in  a  case  decided  somewhat  later  in  the  same  year  (October,  1865),  the  learned  court 
appears  to  lose  sight  both  of  the  distinction  and  the  doubts  suggested  in  Freidenheit  v.  Ed- 
niundson,  saying,  "  To  authorize  the  giving  of  exemplary  or  vindictive  damages,  either  mal- 
ice, violence,  oppression,  or  wanton  recklessness  must  mingle  in  the  controversy.  The  act 
complained  of  must  partake  of  a  criminal  or  wanton  nature,  else  the  amount  sought  to  be  re- 
covered will  be  confined  to  comiiensation."  Kennedy  v.  North  Missouri  R.  R.  Co.  36  Mis- 
souri, 351.     See  also,  Honeseifer  v.  Sheble,  31  Mo.  243. 

To  us,  the  refined  distinction  drawn  in  Freidenheit  v.  Edmundson  does  not  appear  suscep- 
tible of  practical  application.  Damages  for  the  sake  of  example  overstep  the  line  of  compen- 
sation as  well  as  those  for  the  sake  of  punishment ;  and  as  there  is  no  rule  for  measuring  either, 
juries  aiuI  courts  would  be  alike  lost  in  the  attempt  to  trace  a  boundary  between  them.  The 
Supreme  Court  of  Kentucky,  in  the  case  of  Chiles  v.  Drake  (2  Metc.'Ky.  14G),  declare  that 
"  punitive,  vindictive,  and  exemplary  damages  are  all  synonymous  terms."  And  again  in  the 
more  recent  case  of  Louisville  and  Portland  R.  R.  Co.  v.  Sniith,  2  Duvall,  556,  the  same  court 
say :  "  Although  the  strictly  legal  phrase  is  perhaps  vindictive  as  contradistinguished  from  com- 
pensatonj,  yet  exemplary  and  punitive  ....  are  ...  .  generally  considered  as  tantamount  to 
vindictive  damages."     And  such  is  the  general  language  of  the  bench. 

Where  a  court  of  equity,  as  we  have  seen,  has  the  power  to  award  damages,  it  cannot  go 
beyond  compensation.  (Ante,  10,  note  1.)  And  by  applying  to  such  a  court,  the  com- 
plainant waives  all  claim  to  excmplarv  damages.  Bird  v.  The  W.  &  iM.  R.  Co.  8  Rich.  (S. 
C.)  E.  46. 

1  Pendleton  y.  Davis,  1  Jones  (N.  C),  98.    But  wlierever  the  plaintiff  may  enhance  the 


534  ACTIONS    FOR    TORTS.  [CH.    XVIII. 

no  fixed  and  uniform  rnle  of  damages  can  be  declared,  the  func- 
tions of  the  court  at  the  trial  of  the  cause  are  mainly  limited  to 
the  reception  and  exclusion  of  evidence  when  offered  either  by 
way  of  aggravation  or  mitigation,  and  to  a  definition  of  the  line 
between  direct  and  consequential  damage. 

Concurrent  Negligence.  —  We  have  already  *  had  occasion  to 
advert  to  the  principle,  that  the  party  seeking  legal  redress  must 

not  only  show  his  adversary  to  be  in  the  wrong,  but  must 
[4G8]    also  be  prepared  to  prove  that  no  negligence  of  his  own 

has  tended  to  increase  or  consummate  the  injury.^     "A 

Ante,  93,  143. 

dama<res  by  proof  of  circumstances  of  agjo^ravation,  the  defendant  has  the  correlative  right  of 
reducing  tliera  hy  proving  facts  of  an  opposite  tendency.     Millard  v.  Brown,  35  N.  Y.  297. 

1  The  following  are  some  of  the  later  decisions  in  which  this  principle  is  applied  or  defined  : 
The  Pennsylvania  R.  R.  Co.  v.  McTighe,  46  Penn.  316 ;  Chicago,  Burlington,  and  Quincv  R. 
R.  Co.  V.  Dewey,  26  111.  255 ;  Chicago,  Burlington,  and  Quincy  R.  R.  Co.  v.  Hazzard,  26  111. 
373  ;  Moss  v.  Johnson,  22  111.  633  ;  Stucke  v.  Milwaukee  and  Mississippi  R.  R.  Co.  9  Wis. 
202  ;  Teller  v.  Northern  R.  R.  Co.  1  Vroom  (N.  J.),  188  ;  Galena,  Dunleith,  and  Minnesota 
Packet  Co.  v.  Vandergrift,  34  Mo.  55 ;  Hassa  v.  Jungcr,  15  Wis.  598  ;  IMentz  v.  Second  Av. 
R.  R.  Co.  2  Robertson  (N.  Y.  Superior  Court),  356  ;  Lannen  v.  Albanv  Gaslight  Co.  46  Barb. 
264  ;  Spooner  v.  Brooklyn  City  R.  R.  Co.  31  Barb.  (N.  Y.)  419  ;  36  Barb.  217  ;  Mangam  v. 
Brooklyn  Citv  R.  R.  Co.  36  Barb.  230  ;  Willis  v.  Long  Island  R.  R.  Co.  32  Barb.  398 ;  34  N. 
Y.  670 ;  Delafield  v.  Union  Ferry  Co.  10  Bosw.  (N.  Y.)  216  ;  Morris  v.  Phelps,  2  Hilt.  (N.  Y.) 
38 ;  Mentgcs  v.  N.  Y.  &  Harlem'R.  R.  Co.  1  Hilt.  425  ;  Chamberlain  v.  Porter,  9  Minn.  260  ; 
The  City  of  St.  Paul  v.  Kubv,  8  Minn.  154  ;  Steves  v.  Oswego  and  Svracuse  R.  R.  Co.  18  N. 
Y.  422  ;■  Wilds,  Adm'x,  v.  Hudson  River  R.  R.  Co.  24  N.  Y.  430 ;  Isbell  v.  N.  Y.  &  N.  H.  R.  R. 
Co.  27  Conn.  393  ;  Owings  v.  Jones,  9  Md.  108  ;  Mayor,  &c.  v.  Marriott,  9  Md.  160  ;  Mayor, 
&c.  V.  Brannan,  14  Md.  227.  So  in  the  case  of  a  traveller  on  the  highway  who  fails  to  look 
for  the  approaching  train  of  an  intersecting  railroad.  North  Penn.  R.  R.  Co.  v.  Heillman,  49 
Penn.  St.  60.  But  if  the  plaintiff's  want  of  vigilance  was  the  consequence  of  an  omission  of 
duty  ou  the  defendant's  part,  it  is  no  defense.  Penn.  Railroad  v.  Ogier,  35  Penn.  St.  60  ;  Bei- 
siegel  V.  N.  Y.  Cent.  R.  R.  34  N.  Y.  622.  See  Scott  v.  Dublin  and  AVicklow  R.  R.  Co.  11  Ir. 
Com.  Law,  377. 

But  to  prevent  a  recovery,  the  plaintiff's  negligence  must  proximatdij  contribute  to  the  injury. 
If  the  sole  immediate  cause  of  the  accident  was  the  defendant's  negligence,  the  plaintiff  can  re- 
cover notwithstanding  previous  carelessness  of  his  own.  The  Pittsburg,  Fort  Wayne,  and 
Chicago  R.  R.  Co.  v.  Karns,  13  Ind.  87  ;  Richmond  v.  Sacramento  Valley  R.  R.  Co.  18  Cal. 
351  ;  Stucke  v.  Mil.  &  Miss.  R.  R.  Co.  9  Wis.  202  ;  Trow  v.  Vt.  Cent.  R.R.  Co.  24  Vt.  487  ; 
The  Vicksburg  and  Jackson  R.  R.  Co.  v.  Patten,  31  Miss.  156  ;  KerM'hacher  v.  The  Cleveland, 
Columbus,  and  Cincinnati  R.  R.  Co.  3  Ohio  St..  172.  An  attempt  has  been  made  in  Iowa  to 
introduce  a  new  distinction  into  the  law  relating  to  this  subject.  In  Wright  v.  The  111.  &  Miss. 
Tel.  Co.  20  Iowa,  195,  it  was  said  by  the  court  that  although  the  plaintiff  may  recover  when 
his  negligence  is  not  the  proximate  cause  of  the  injury,  still  he  is  not  entitled  to  recover  for 
any  enhancement  of  his  damages  by  reason  of  his  own  want  of  care.  That  is  to  say,  his  dam- 
ages would  be  measured  by  the  amount  of  injury  he  would  have  suffered  had  he  been  entirely 
careful.  In  the  words  of  the  court :  "  To  illustrate  by  this  case  :  suppose  that  it  was  careless 
and  negligent  for  the  plaintiff  to  take  so  many  horses  and  mules  with  only  one  assistant  (as  the 
proof  tends  to  show),  when  he  should  have  had  thi'ee,  and  that  the  eight  horses,  led  by  the  one 
man,  would  have  run  against  and  become  entangled  in  the  wire,  if  led  by  two  men  ;  yet,  if  by 
reason  of  having  but  the  one  man  to  manage  them,  after  they  became  thus  entangled,  the 
horses  suffered  more  injury  and  damage  than  they  would  if  there  had  been  tM-o  men  to  the 
eight  horses,  the  plaintiff  ought  not  to  recover  for  such  excess  of  damage."  It  is  difficult  to 
see  how  such  a  rule  could  furnish  a  measure  of  damages.  How  can  a  juiy  say  what  would 
have  been  the  injury  if  the  plaintiff  had  been  a  little  more  careful  than  he  was  ^  But  as  the 
case  was  decided  on  another  ground,  this  may  be  considered  as  nothing  more  than  a  dictum. 

Neither  does  the  law,  which  is  always  practical,  and  takes  men  as  they  are,  exact  the  utmost 
possil)le  caution  from  the  plaintiff.  It  is  enough  if  he  were  exercising  ordinary  care.  Fero  v. 
Bulflxlo  and  State  Line  R.  R.  Co.  22  N.  Y.  209.  So  where  a  horse  had  sickened  in  conse- 
quence of  improper  care  by  the  hirer,  he  was  held  liable  for  its  full  value,  notwithstanding  that 


CH.    XVIII.]  EXEMPLARY   DAMAGES.  535 

party  in  an  action  on  tlie  case  for  negligence,  cannot  recover 
damages  Avliich  have  resulted  from  his  own  negligence  and  want 
of  care.  He  must  show  himself  in  the  right,  and  the  defendant 
in  the  wrong;  that  he  has  performed  his  duties,  and  that  the 
defendant  has  neglected  his,  and  that  the  damages  are  the  legit- 
imate consequence  of  the  negligence  of  the  defendant."  * 

So  in  Massachusetts,  an  action  from  an  injury  received  from 
a  collision  of  carriages  passing  on  a  public  road,  cannot  be  main- 
tained by  a  plaintiff  who,  at  the  time  of  the  collision,  was  guilty 
of  negligence,  although  the  other  party  was  also  negligent,  and 
even  though  he  was  on  the  wrong  side  of  the  road.f  "It  is  a 
well-settled  principle,"  said  the  court,  "  that  to  entitle  the  plain- 
tiff to  recover,  he  must  show  the  injury  to  have  been  attribut- 
able to  the  imprudence  of  the  defendant,  and  under  such  cir- 
cumstances as  to  exonerate  himself  from  all  neglect  of  duty  on 
his  part."  t  So  in  the  same  State,  in  an  action  against  towns 
for  neglecting  to  keep  the  roads  in  repair,  the  plaintiff  does  not 
entitle  himself  to  a  verdict  by  establishing  the  fact  of  a  defect- 
ive highway  and  damage  resulting  therefrom,  unless  he  also 
show  that  he  was  using  ordinary  care  and  diligence  in  travelling 
upon  the  road.§  But  it  is  not  necessary  in  the  declaration  to 
aver  the  exercise  of  ordinary  care ;  ||  it  is  sufficient  if  the  fact  so 
appear ;  and  this  burden  of  proof  he  assumes.^  So  in 
Massachusetts,  if  the  accident  happen  on  a  Sunday,  wdien  [469] 
travelling  is  forbidden  except  for  necessity  or  charity,  the 
plaintiff  is  bound  to  show  that  the  travelling  was  of  that  charac- 
ter.** And  in  England,  the  rule  has  been  carried  so  far,  that 
one  who  sustains  an  injury  from  a  carriage  or  vessel,  cannot 
maintain  an  action  against  the  owners  of  such  carriage  or  vessel 
if  negligence,  either  on  his  own  part  or  on  the  part  of  those 
having  the  guidance  of  the  carriage  or  vessel  in  which  he  is  a 

*  Tersons  v.  Parker,  3  Barb.  S.  C.  E.  249  ;  Lean,  286  ;    and  Lane  v.  Croml)ie,  12  Pick. 

Carlisle  v.  Ilolton,  3  La.  Ann.  E.  48  ;  Moshier  177  ;  also  INIoorc  v.  The  Mayor  of  Shrevejiort, 

V.  U.  &  S.  E.  E.  Co.  8  Barb.  S.  C.  E.  427  ;  3  La.  Ann.  E.  645.     See  also,  in  Maine,  Ken- 

Muri>hy   v.  Diamond,  3  La.  Ann.    E.   441;  nard  y.  Burton,  12  Sliepley  (25  Me.),  39 ;  and 

Eatliliiin  y.  Pavnc,  19  Wend.  399  ;  Spencer  w.  in  Yemiout,  Eice   v.   Montpelier,    19  Venn. 

Utica  &  Sch'y'E.  E.  Co.  5  Barbour  S.  C.  E.  471. 

337  ;  Pluckwell  v.  Wilson,  5  Car.  &  Payne,  §  Thompson   v.   Inhab.   of  Bridgew-ater,  7 

375  ;  Williams  i'.  Holland,  6  Car.  &  Payne,  Pick.  188  ;  Adams  v.  Inhabitants  of  Carlisle, 

23;  10  Bins-.  112;  Hawkins  v.  Cooper,  8  C.  21  Pick.  146. 

&  P.  473  ;  Brand  v.  Troy  &  S.  E.  Co.  8  Barb.  ||  May  v.  Inhab.  of  Princeton,  11  Met.  442. 

S.  C.  E.  368;  Marsh  v.  N.  Y.  &  Erie  E.  E.  1  Tourtellot   v.  Eoscbrook,   11    Met.  460; 

Co.  14  Barb.  S.  C.  E.  364.  Adams  v.  Lihab.  of  Carlisle,  21  Pick.  146. 

t  Parker  v.  Adams,  12  Met.  415.  **  Bos^yorth  v.  Inhab.  of  Swansey,  10  Met. 

t  See  also,  Halderman  v.  Beckwith,  4  Me-  363. 

after  its  rotiim  to  the  owner  the  ill-adyised  treatment  of  a  suitable  yeterinary  surgeon  em- 
ployed by  the  owner,  who  acted  according  to  his  l)cst  judgment,  contributed  to  its  death. 
Eastmani'.  Sanborn,  3  Allen  (Mass.),  594.  But  see  Catawissa  E.  E.  Co.  v.  Armstrong,  49 
Peun.  St.  186. 


536  ACTIONS    FOR    TORTS.  [CH.    XVIII. 

passenger,  conduced  to  the  accident,  and  if  such  injury  might 
have  been  avoided  by  the  exercise  of  reasonable  care  either  on 
his  or  their  part.*  ^ 

To  Defeat  a  Recovery  the  Defendant's  Wrong  must  Contri- 
bute TO  THE  Injury.  —  This  general  principle  applies  to  all  cases 
where  injuries  to  person  or  property  arising  from  negligence, 
form  the  subject  of  inquiry.  Of  these,  cases  of  collision  between 
carriages,  and  vessels,  form  a  considerable  class.^     And  in  these 

*  Thoro,!:^oocl  v.  Br3'an,  8  Man.  Gr.  &  Scott,     rule,  as  when  both  the  carriers  arc  in  fault,  all 
115,  and  Cattlin  v.  Hills,  Ibid.  123.     I  confess     redress  is  practically  denied, 
this  seems  to  me  an  indiscreet  extension  of  the 


1  In  such  a  case,  by  the  New  York  rule,  the  exercise  of  due  care  by  the  injured  party  is  an 
element  in  the  cause  of  action,  and  in  a  conflict  of  evidence  there  must  be  a  preponderance 
showing  his  obsei-vance  of  due  care,  although  his  negligence  is  not  to  be  presumed.  Button  v. 
The  Hudson  River  R.  R.  Co.  18  N.  Y.  248. 

*  The  general  principle  followed  by  the  admiralty  courts  in  cases  of  collision  is,  that  the  dam- 
ages to  be  assessed  against  the  offending  vessel  must  be  suthcient  to  restore  the  other  to  the 
condition  she  was  in  at  the  time  of  collision,  if  restoration  is  practicable.  The  Granite 
State,  3  Wallace,  310  ;  The  Pilot  Boat  Blossom,  Olcott,  188  ;  The  Steamboat  Narragansett, 
Ibid.  388  ;  The  Steamboat  New  Jersey,  Ibid.  444  ;  The  Steamboat  Rhode  Island,  Ibid.  505  ; 
The  Schooner  Catharine  v.  Dickinson,  17  How.  170.  The  owner  cannot  therefore  sell  her  as 
she  lies,  deduct  the  price  from  her  value  before  the  collision,  and  recover  the  difference.  Ibid. 
And  see  Atchinson  v.  The  Doctor  Franklin,  14  Mo.  63;  Minor  v.  Steamer  Picayune,  13  La. 
Ann.  564.  If  on  the  other  hand  the  injured  vessel  is  a  total  loss,  her  market  value  at  the  time 
will  be  the  criterion  of  damages.  The  Ann  Caroline,  2  Wallace,  538  ;  The  Rebecca,  Blatchf. 
&  H.  347  ;  The  New  Jersey,  Olcott,  444. 

So  the  damages  to  the  cargo  arc  to  be  made  good.  The  Steamboat  Narragansett,  Olcott, 
388.  Where  it  is  a  total  loss  its  value  is  the  measure.  Porter  v.  Allen,  8  Ind.  1.  This  value, 
it  has  been  held  in  a  comparatively  early  case,  in  analogy  to  the  rule  in  the  case  of  carriers, 
was  to  be  estimated  at  the  port  of  destination,  at  the  time  when,  in  the  ordinary  course  of 
things,  it  would  have  been  delivered.  The  Joshua  Barker,  Abb's  Adm.  215.  But  by  the  rule  now 
prevailing,  it  seems  settled  that  the  value  must  be  taken  at  the  port  of  shipment,  and  on  this 
sum  interest  may  be  allowed.  Smith  v.  Condry,  1  How.  (U.  S.)  28  ;  Adams  v.  The  Ocean 
Queen  (U.  S.  Circuit  Court,  South.  Dist.  of  N.  Y.  cor.  Shipman,  J.,  November,  1866  ;  Gordon 
V.  The  Propellor  Vaughn,  Ibid.  cor.  Blatchford,  J.,  January,  1868).  (This  corresponds  with 
the  rule  in  prize  cases.  The  Schooner  Lively,  1  Gallison,  315  ;  The  Amiable  Nancy,  3  Ibid 
546,  560,  ante,  70,  71.)  And  such  value  must  be  computed  in  the  currency  prevailing  at  such 
port.  If  the  currency  there  is  equivalent  to  gold,  and  gold  is  at  a  premium  at  the  port  of 
destination,  the  premium  cannot  be  included.  The  conversion  must  be  made  on  the  basis  of 
the  legal  equivalent  in  coined  money  at  the  latter  port  to  the  value  at  the  former  port  in  the 
currency  there.     Gordon  v.  The  Vaughn,  supra. 

So  profits  in  the  larger  sense  are  now  generally  excluded  as  too  remote.  Smith  v.  Condry  ; 
Adams  v.  The  Ocean  Queen  ;  Gordon  v.  The  Vaughn,  supra  ;  Cummings  v.  Spruance,  4  Har- 
ring.  (Del.)  315;  Steamboat  Co.  v.  Whilldin,  4  Harring.  228. 

But  the  line  is  not  clearly  drawn,  and  in  the  sense  of  earnings  of  which  the  vessel  is 
certainly  deprived  during  the  repairs,  they  are  allowed.  Williamson  v.  Barrett,  13  How.  106; 
The  Narragansett,  Olcott,  388;  The  Rhode  Island,  2  Blatchf.  C.  C.  R.  113;  1  Abb's  Adm. 
100  ;  Vantine  v.  The  Lake,  2  Wallace,  Jun.  52.  So  a  similar  rule  prevails  in  the  common  law 
courts.  The  Shelby ville  Lateral  Branch  R.  Co.  v.  Lewark,  4  Ind.  471  ;  as  also  in  the  analo- 
gous case  of  the  detention  of  a  vessel  from  an  unlawful  obstruction  to  the  navigation.  Jolly  v. 
The  Terre  Haute  Draw-bridge  Co.  2  M'Lean,  237. 

And  the  rule  in  England  broadly  allows  profits.  So  in  the  case  of  Heard  v.  Holman, 
19  C.  B.  R.  (N.  S.)  1,  the  general  measure  of  damages  is  declared  by  Erie,  C.  J.,  approving 
the  rule  there  recognized  in  Admiralty,  to  be  "  the  expenses  of  repairs  rendered  necessary  by 
the  collision,  and  also  compensation  for  the  loss  of  profits  that  would  have  been  made  from 
the  use  of  the  vessel  if  the  collision  had  not  occurred."  And  see  The  Gazelle,  2  Wm.  Rob.  279. 

And  where  a  vessel  is  engaged  in  carrying  freight  at  the  time  of  the  collision,  the  rate 
of  freight  she  could  have  earned,  deducting  expenses,  during  the  time  required  for  repair- 
ing, is  a  proper  measure  of  damages.     Williamson  v.  Barrett,  supra.     And  if  she  were  not 


en.    XVIII.]  EXEMPLARY    DAMAGES.  537 

as  in  other  cases,  where  iiegh'gence  or  infringement  of  the 
rights  of  others  is  com])lained  of,  the  general  rnle  appears  to  be 
that  at  laAV  the  plaintiff,  in  order  to  recover,  must  be  able  to 
show  that  he  has  not  in  any  way  contributed  to  the  accident ; 
on  the  other  hand,  although  he  may  have  been  in  the  wrong, 
still,  if  his  error  did  not  aggravate  the  difficulty,  his  right  to  re- 
lief will  be  unprejudiced.^  But  the  mere  fact  of  the  conduct  of 
the  plaintiif  not  being  strictly  regular,  is  immaterial ;  the  in- 
quiry is  whether  his  irregularity  has  augmented  the  mischief; 
if  so,  as  the  law  is  inadequate  to  apportion  the  wrong,  there  can 
be  no  recovery. 

So  in  another  case  in  England,  where  the  defendant  under- 

carryinp:  freight,  at  the  time,  but  might  have  been  chartered  during  the  period  of  the  repairs, 
the  market  ])rice  of  the  hire  of  the  vessel  affords  a  rule.  Ibid.  And  in  tlie  absence  of  direct 
evidence  of  the  value  of  the  use  of  die  vessel,  interest  on  her  value  may  be  allowed  for  the  time 
occupied  in  repairing.  The  Rhode  Island,  supra.  But  compare  Quarrier  v.  Richai'ds,  7  La. 
Ann.  277. 

There  is  no  established  market  value  for  boats,  barges,  and  other  articles  of  that  description, 
as  in  the  case  of  grain,  cotton,  or  .stock,  and  their  loss  cannot  be  measured  by  the  ratio  of  their 
profits,  since  the  loss  of  an  old  hulk  of  little  value  which  was  making  or  might  make  consider- 
able profits,  might  be  supplied  at  a  price  much  less  than  one  proportioned  to  such  profits.  The 
Granite  State,  supra. 

Hy))uthetical  or  consequential  damages  must  be  excluded.  The  Pilot  Boat  Blossom,  Olcott, 
138  ;  The  Steamboat  Narragansett,  Ibid.  246.  But  necessary  incidental  expenses  and  losses  are 
allowed,  such  as  loss  of  Avages,  and  damage  to  the  vessel  from  efforts  to  save  her  at  the  time  of 
the  collision  (The  Nautilus,  Ware,  529),  salvage  expenses  (Ibid.),  charges  for  wharfage  while 
repairing,  and  the  time  of  those  employed  in  raising  and  clearing  out  the  vessel.  Vantine  v. 
The  Lake,  supra.  And  the  offending  vessel  is  not  exonerated  from  full  damages  because  after 
the  wreck  a  part  of  the  cargo  was  injured  or  lost  through  the  efforts  of  a  third  party  to  save  it 
(The  Narragansett,  supra). 

Stipulators  cannot  be  made  liable  for  more  than  the  amount  assumed  in  the  stipulation  as 
the  value  of  the  offending  vessel,  with  costs  as  stipulated.  The  Ann  Caroline,  2  Wall.  538 
{supra ) . 

If  both  vessels  are  in  fault  in  the  collision,  then  the  loss  is  divided  between  them.  The 
Schooner  Catharine  v.  Dickinson,  17  How.  170  ;  Ralston  v.  The  State  Rights,  Crabbe's  C.  C. 
R.  22  ;  Foster  v.  The  Miranda,  6  INI'Lean's  C.  C.  R.  221 ;  Lucas  v.  The  Steamboat  Thomas 
Swann,  Ibid.  282;  The  Agra  and  Elizabeth,  4  Moore  P.  C.  (N.  S.)  435.  And  see  The 
Singapore  and  The  Hebe,  Ibid.  271.  And  this  rule  prevails  also  when  the  collision  is  oc- 
casioned by  inscrutable  fault ;  and  in  dividing  the  damages  under  this  rule,  no  regard  is  paid 
to  the  difference  in  value  between  the  vessels.  The  Nautilus,  Ware,  529 ;  Ward  v.  The  Brig 
Fashion,  1  Newb.  Adm.  8.  But  to  make  the  rule  applicaltle,  the  fault  must  be  such  as  con- 
tributes to  the  collision.     Wilson  v.  The  Envoy,  1  Phil.  viii.  10  (bot.  p.  138). 

But  if  the  collision  is  the  result  of  inevitable  accident,  each  vessel,  in  this  country,  must  bear 
her  own  loss.  Stainbach  v.  Rae,  14  How.  532  ;  The  Nautilus,  Ware,  529.  And  this  is  the 
law  in  Louisiana  and  Arkansas,  where  there  is  nautual  fault.  Sackett  v.  M'Comb,  11  La.  Ann. 
325 ;  and  .see  Love  v.  The  Captain,  &c.,  of  the  Montgomery,  10  Ibid.  113;  Duggins  v.  Watson, 
15  (Ark.)  Barb.  118.  It  is  no  defense  to  a  cause  of  collision  that  the  loss  has  been  paid  by  the 
underwriters.  The  trespasser  has  no  concern  with  the  contract  with  the  insurer.  The  Pro- 
peller Montieello  v.  Mollison,  17  How.  152. 

In  a  case  of  a  willful  and  malicious  collision,  damages  may  be  given  above  the  amount  of 
actual  injury.     Ralston  v.  The  State  Rights,  Crabbe's  C.  C.  R.  22. 

Under  the  statute  of  the  State  of  New  York  (Laws  of  1831,  421,  ch.  318),  giving  a  lien  upon 
ships  and  vessels  for  damages  occasioned  by  collisions,  and  an  attachment  of  such  ships  and 
vessels  therefor,  the  remedy  is  confined  to  the  actual  damage  to  the  vessel  injured,  /.  c.  to  the 
amount  necessary  to  repair  and  put  her  in  as  good  condition  as  when  the  accident  happened. 
The  owners  of  the  injured  vessel  cannot,  in  this  jiroceeding,  recover  for  their  loss  of  earnings, 
or  other  like  damages,  consequent  upon  the  collision.  But  the  expense  of  towing  the  vessel  to 
her  place  of  repair,  and  wharfiige  while  repairing,  are  proper  items  of  damage.  The  owners 
are  also  entitled  to  recover  interest  on  the  amount  of  the  damages  from  the  time  of  the  injury. 
Fitch  V.  Livingston,  4  Sandf.  (N.  Y.)  492. 

^  See  ante,  468,  note  1. 


538  ACTIONS    FOR    TORTS.  [CH.    XYIII. 

took  to  excuse  himself  by  throwing  the  blame  of  the  accident 
on  the  plaintiff,  this  language  was  held :  "  If  the  plaintiff's  ser- 
vants substantially  contributed  to  the  injury  by  their  improper 
or  negligent  conduct,  the  defendant  would  be  entitled  to  a  ver- 
dict: but  if  the  injury  was  occasioned  by  the  improper  or  negli- 
gent conduct  of  the  defendant's  servants,  and  the  plaintifPs  ser- 
vants did  not  substantially  contribute  to  produce  it,  then  the 
plaintiff  would  be  entitled  to  the  verdict."* 

So  said  the  English  Exchequer  in  a  recent  case :  "  There  may 
have  been  negligence  in  both  parties,  and  yet  the  plain- 
[470]  tiff  may  be  entitled  to  recover.  The  rule  is,  that  al- 
though there  may  have  been  negligence  on  the  part  of 
the  plaintiff,  yet  unless  he  might,  by  the  exercise  of  ordinary 
care,  have  avoided  the  consequences  of  the  defendant's  negli- 
gence, he  is  entitled  to  recover ;  if  by  ordinary  care  he  might 
have  avoided  them,  he  is  the  author  of  his  own  wrong.f 

This  doctrine  has  been  approved  by  the  Supreme  Court  of 
Connecticut,  in  a  case  t  where  it  was  said,  "  The  defendant  shall 
not  be  permitted  to  shield  himself  from  an  injury  which  -he  has 
committed,  because  the  party  injured  was  in  the  wrong,  unless 
such  wrong  contributed  to  produce  the  injury."  § 

Infants.  —  Whether  this  doctrine,  in  its  broad  extent,  is  ap- 
plicable to  infants  of  tender  years,  may  be  considered  uncertain. 
In  England  it  has  been  held,  in  a  suit  brought  by  the  guardian 
of  an  infant  injured  by  the  defendant's  negligence,  that  though 
the  carelessness  of  the  child  was  a  cooperating  cause  of  his  mis- 
fortune, still  he  could  recover,  as  his  misconduct  bore  no  pro- 
portion to  that  of  the  defendant.||  But  in  New  York,  in  a  very 
similar  case,  it  was  said  that  infants  could  not  be  exempted  from 
legal  rules  when  suing  for  redress,  and  the  right  to  recover  was 
denied.^  In  Connecticut  and  Vermont,  however,  the  case  of 
Lynch  v.  Nurdin  has  been  cited  with  approbation  ;  and  in  the 
former  State  it  has  been  said,  "  What  would  be  but  ordinary 
neglect  in  regard  to  one  whom  the  defendant  supposed  a  person 
of  full  age  and  capacity,  would  be  gross  neglect  as  to  a  child,  or 
one  known  to  be  incapable  of  escaping  danger."  ** 

*  Sills  r.  Brown,  9  Car.  &  Payne,  601.  §   See   also,    Raisin  v.  Mitchell,   9    Car.  & 

t  Brid<j;e  ;;.   Grand    J.  R.   Co.  3  Mees.  &  Payne,  613. 

Wels.  246  ;  S.  P.  cited  in  Davies  v.  Mann,  10  |1  Lvnch  v.  Nurdin,  1  Q.  B.  29. 

Mees.  &  W.  546  ;  Marriott  v.  Stanley,  1  Man.  IT  Hartfield  v.  Roper,  21  AVend.  61.5.     And 

&  Gr.  568.  see  this  case  cited  with  approbation  in  Willets 

t  New  Haven  Steamboat  and  T.  Co.  v.  Van-  v.  Bnftalo  &  Rochester  R.  R.    Co.  14  Barb, 

derbilt,    16    Conn.  420.     See    also.  Beers  v.  585. 

Housatouic  R.  R.  Co.  19  Conn.  566,  S.  P.  **  Rolnnson  v.  Cone,  22  Venn.  213 ;  Birgc 

V.  Gardiner,  19  Conn.  507. 


CH.    XVIII.]                                             FELONY.                                                           539 
MoDirU'ATIOXS    OF    THE   RuLE   AS     TO    CONCURRENT    NEGLIGENCE. 

As  another  modiflciition  or  qualification  of  the  general  rule, 
that  the  concurrence  of  the  plaintiff's  negligence  with  that  of 
the  defendant  will  defeat  the  claim  for  redress,  has  been  laid 
down  in  New  York,  it  has  been  said  that  "  where  one  in  the  law- 
ful use  of  his  property  put  it  in  an  exposed  or  hazardous  posi- 
tion, and  in  more  than  ordinary  danger  from  the  lawful  acts  of 
others,  as  for  instance,  if  he  build  near  a  railroad,  still  he 
does  not  lose  his  remedy  for  an  injury  caused  by  the  cul-  [471] 
pable  negligence  of  others."  *  And  the  same  principle 
has  been  recently  declared  in  England;  where  it  has  been  said 
that  the  defendant  is  not  excused  merely  because  the  plaintiff 
knew  that  some  danger  existed,  and  voluntarily  incurred  such 
danger,  provided  the  defendant's  negligence  was  the  cause  of  the 
damage  ;  the  whole  matter  being  for  the  consideration  of  the 

So,  also,  it  has  been  said  in  New  York,  that  the  plaintiff's 
negligence  does  not  excuse  injuries  inflicted  by  design.  "  A 
wrong-doer  is  not  necessarily  an  outlaw,  but  may  justly  complain 
of  wanton  and  malicious  mischief"  t  '^ 

In  England,  it  has  been  declared  to  be  the  general  rule,  that 
a  party  has  no  right  to  sue  for  damages  in  a  civil  action  for  any 
act  which  amounts  to  felony,  until  the  felon  is  prosecuted  and 
acquitted  or  convicted ;  and  the  reason  assigned  is  a  desire  to 
prevent  the  criminal  justice  of  the  kingdom  from  being  defeated,§ 
as  well  as  the  fundamental  principles  of  the  feudal  system.  By 
that  system,  the  commission  of  a  felony  worked  a  forfeiture  of 
the  feudatory's  grant,  and  the  forfeiture  extending  to  the  whole 
property  of  the  felon,  and  the  crime  being  capital  and  punished 
by  death,  nothing  remained  to  satisfy  a  private  demand,  and  no 
joerson  against  whom  an  action  could  be  brought.  But  it  seems 
that  such  is  not  the  law  in  this  country.il  ^ 

*  Cook  V.  Champlain  Transportation  Co.  1  §  Crosby  v.  Lang,  12  East,  409. 

Denio,  91.  ||  Boardman  i-.  Gore,  15  Mass.   3.36  ;  Ocean 

t  Clayard  v.  Dethick  et  al.  12  Q.  B.  439.  Ins.  Co.  v.  Fields,   2  Story,  59  ;  Plummer  v. 

X  Tonawanda  R.  R.  Co.  v.  Hunger,  5  Denio,  Webb,  Ware  Rep.  78. 
255. 

^  And  if  the  wrong  done  be  wholly  unjustifiable,  as  in  ejecting  a  passenger  from  the  front  of 
a  railway  car  while  the  car  was  in  motion,  at  the  danger  of  his  life,  because  of  his  refusal  to 
pay  his  fare,  then  the  conduct  of  the  party  injured  contributing  to  the  injury,  a.s  in  provoking 
the  assault  by  non-j)a}Tnent  of  his  fare  and  in  resisting  the  attempt,  is  not  to  be  considered  in 
reducing  the  claim  for  damages  occasioned  by  his  death.  Sandford  v.  The  Eighth  Avenue  R. 
E.  Co.  23  N.  Y.  343. 

Where  the  right  of  action  is  not  destroyed  by  concurrent  negligence  in  the  plaintiff,  it  is 
still  his  duty  (as  in  cases  of  breaches  of  contract,  mte,  200,  note)  to  reduce  the  damages  as  far 
as  may  be  reasonably  in  his  power,  and  in  case  of  his  failure  to  do  so,  the  damages  should  be 
proportionably  reduced.     Illinois  Cent.  R.  R.  Co.  v.  Finnegau,  21  111.  646. 

^  In  New  York,  it  is  enacted  that  where  the  violation  of  a  right  admits  of  both  a  civil  and 
criminal  remedy,';the  right  to  prosecute  the  one  is  not  merged  in  the  other.  N.  Y.  Code  of 
Procedure,  §  7.    A  similar  provision  exists  in  many  of  the  States. 


540  ACTIONS    FOR   TORTS.  [CH.    XVIII. 

The  subject  of  remote  and  consequential  damages  in  cases  of 
tort,  we  have  abeady  considered  elsewhere.*  And  we  have 
also  had  occasion  to  call  attention  to  cases  bearing  on  this  point, 
in  which  it  has  been  held,  that  the  fact  of  the  plaintiff  being 
indemnified  bj  charity  or  otherwise,  cannot  be  set  up  by  a 
wrong-doer  in  diminution  of  the  amount  which  he  is  liable  to 
pay.t 

The  Law  should  always  furnish  the  Eule  except  where 
Punitive  Damages  are  Justifiable.  —  In  closing  this  branch  of 
our  subject,  it  ought  to  be  observed,  that  while,  where 
[472]  circumstances  of  aggravation  are  proved,  the  jury  are  the 
necessary  as  well  as  the  rightful  judges  of  the  amount  of 
relief,  on  the  other  hand,  where  no  such  facts  are  presented,  too 
much  care  cannot  be  taken  to  apply  settled  rules  to  the  subject 
of  compensation.  It  can  make  no  difference  whether  the  action 
be  one  nominally  ex  contractu  or  ex  delicto^  whether  for  the  breach 
of  a  contract  or  the  violation  of  a  right ;  in  either  case,  if  no 
evil  motive  be  imputed,  the  amount  of  compensation  is  as  much 
a  matter  of  law  as  the  right  itself,  and  can,  with  no  greater 
safety,  be  submitted  to  the  vague  and  fluctuating  discretion  of 
ajury.$ 

We  shall,  in  discussing  the  cases  which  arise  under  the  pres- 
ent branch  of  our  subject,  first  consider  those  where,  though  the 
proceeding  be  nominally  in  tort,  no  circumstance  of  aggravation 
is  proved,  and  where  the  law  undertakes  to  apply  a  fixed  measure 
of  compensation. 

*  Ante,  57,  et  seq.     Sec,  too,  on  this  subject,  which  exemplary  or  vindictive   damages  are 

Molinreus,  de  Eo  quod  Int.  §  177.  allowed,  has  not  yet  been  made  in  any  distinct 

t  Vide  ante,  39.  manner.     In  all  actions  of  tort  accompanied 

J  Vide  post,  ch.  sxii.  by  violence,  malice,  or  oppression,   they  are 

In  an  action  on  the  case  for  fraud  in  the  undoubtedly  recoverable ;  but  how  far,  in  cases 

sale  of  personal  property,  it  is  said  to  be  the  of  tort,   mere   fraud  will   found   a  claim  for 

well  settled  doctrine  in  Kentucky,  that  vindic-  them,  is  not  yet  determined.     In  many  cases 

tive  damages  cannot  be  given.      Singleton's  of  fraud  the  courts  have  declared  a  fixed  and 

Adm'r  v.  Kennedy  &  Co.  9  Ben  Monroe,  222.  uniform  rule,  which,  of  course,  excludes  all 

And  the  court  considered  that  they  could  not  idea  of  vindictive  or  exemplary  damages.  But 

be  given  in  like  cases  in  Louisiana.     But  they  there   are    many    other    cases   where    fraud, 

may  be  given  in  Kentucky,  where  a  trespass  though  unattended  by  violence,  is  accompa- 

is  committed  willfully  and  in  a  high-handed  nied  by  gross  malice  and  manifest  design  to 

manner.     Jennings  v.  Maddox,  8  B.  Monroe,  injure;  and  in  these  it  would  seem  that  they 

4.30.  should  be  allowed. 

The  precise  demarkation  of  the  cases  in 


CHAPTER  XIX. 

THE  RULE    OF  D.IMAGES  IN    ACTIONS  BROUGHT  FOR   THE  MISAPPROPRIATION 
OR  CONVERSION    OF  PERSONAL    PROPERTY. THE  COMMON-LAW   ACTION 

OF  TRO^^:R. 

The  General  Rule  is  the  Value  of  the  Property  Converted.  —  Special  Damages 
whether  Recoverable.  —  Value,  whether  estimated  at  the  Time  of  Conversion, 
or  at  Time  of  Trial.  —  Where  Plaintiff  claims  a  Special  Property,  or  by  Virtue 
of  a  Lien.  —  Where  the  Defendant  has  bestowed  Labor  on  the  Property.— 
In  regard  to  Choses  in  Action.  —  Interest.  —  Mitigation  of  Damages. 

In  treating  of  the  subject  of  torts  we  shall  first  discuss  those 
cases,  which,  being  unattended  by  any  circumstances  of  aggra- 
vation, are  regarded  entirely  as  under  the  control  of  the  court, 
and  in  which  a  fixed  rule  of  damages  is  maintained  as  matter  of 
law.  In  these  cases,  as  in  contracts,  compensation  is  awarded 
on  fixed  legal  principles.  Where,  on  the  other  hand,  the  amount 
of  relief  is  submitted  to  the  discretion  of  the  jury,  few  ques- 
tions present  themselves  as  to  the  measure  of  damages. 

Nature  of  Trover.  —  Trover  is  the  form  of  action  prescribed 
by  the  common  law,  where  damages  are  demanded  for  specific 
personal  proj)erty  which  has  been  wrongfully  approjDriated,  or 
in  more  technical  language,  converted  to  the  use  of  any  other 
than  its  rightful  owner.  It  is  often  brought  at  the  option  of 
the  plaintiff  in  cases  where  assumpsit,  and  in  others  where  tres- 
pass or  replevin,  would  lie.*  The  consequences  flowing  from 
the  election  of  assumpsit  are  well  stated  in  the  language  of  Lord 
C.  J.  Ellenborough.  "  In  bringing  an  action  for  money  had  and 
received,  instead  of  trover,  the  plaintiff  does  no  more  than 
waive  any  complaint  with  a  view  to  damages  for  the  tortious 
act  by  which  the  goods  were  converted  into  mone}',  and  takes 
to  the  net  proceeds  of  the  sale  as  the  value  of  the  goods, 
subject  of  course  to  all  the  consequences  of  considering  [474] 
the  demand  in  question  as  a  debt,  and  amongst  others  to 

*  Barker  v.  Cory,  15  Ohio,  9. 


542  CONVERSION    OF    PERSONiVL    PROPERTY.  [CH.    XIX. 


that  of  the  defendants'  having  a  right  of  set-off,  if  they  should 
happen  to  have  any  counter-demand  against  the  plaintiff" 


*  1 


Value  of  the  Property  generally  Measures  the  Damages.  — 
But  where  trover  is  adopted,  the  general  proposition  may  be 
laid  down,  that  the  value  of  the  property  converted  is  the 
measure  of  damages.^  This,  however,  is  subject  to  many  quali- 
fications. 

Pretium  Affectionis.  —  It  is  proper,  perhaps,  before  entering 
on  the  general  discussion,  to  take  notice  of  an  exception  to 
which  is  applied  the  term  of  pretium,  affectionis.  It  has  been  inti- 
mated in  many  cases,  though  perhaps  never  as  yet  directly  de- 
cided, that  where  the  property  in  question  had  for  some  partic- 
ular reason  a  peculiar  value  to  its  owner,  as  a  picture  to  a  rela- 
tive, a  manuscript  to  a  descendant,  and  so  in  many  other  cases 
that  may  be  supposed,  it  would  be  proper  for  the  jury  instead 
of  confining  themselves  to  the  rigid  estimate  of  value,  of  which, 
perhaps,  there  might  be  no  criterion,  to  give  an  enhanced  remu- 
neration for  the  peculiar  estimate  in  which  the  true  owner  held 
the  article  in  question,  as  a  pretium  affectionis.  It  is  very  diffi- 
cult to  reduce  remuneration  of  this  kind  to  principle  or  settled 
rule.  In  cases  of  intentional  wrong  the  rule  of  vindictive  dam- 
ages covers  the  case.     But  when  such  is  not  the  case,  how  far 

*  Hunter  v.  Priusep,  10  East,  378,  391 ;  Greenlcaf  on  Evidence,  voL  ii.  218.  Vide  ante,  38, 
in  notes. 

1  Assumpsit  for  money  had  and  received,  is  the  proper  form  of  action  when  tlie  defendant 
has  received  money,  or  what  is  to  be  treated  as  such,  to  the  use  of  the  plaintiff;  but  it  will  not 
lie  for  stocks,  goods,  or  other  articles,  unless  Ijy  the  understandin;j:  of  the  parties  they  were  to 
be  treated  as  money.  Accordingly,  where  the  plaintiff  sued  in  this  form  of  action  to  recover  a 
sum  of  gold  which  had  been  deposited  with  the  sheriff 's  deputy  as  bail,  at  a  time  when  gold 
was  at  a  premium,  the  recovery  was  limited  to  the  value  of  the  gold  as  money,  with  interest. 
Frothingham  v.  Morse,  45  N.  H.  545. 

"  In  trover,"  say  the  Supreme  Court  of  Tennessee,  "  the  rule  of  damages  is  arbitrary ;  the 
measure  in  general  is  the  value  of  the  property  tortiously  converted.  But  in  case,  which  is  an 
action  founded  on  the  plaintiff's  title  in  justice  and  equity  to  receive  a  compensation  in  dam- 
ages (2  Stark.  Ev.  212),  the  damages  are  to  be  estimated  by  the  jur^',  in  view  of  all  the  cir- 
cumstances of  the  (particular)  case."     Jones  v.  Allen,  1  Head  (Tenn.),  626. 

2  Beecher  v.  Denniston,  13  Gray  (Mass.),  354  ;  Watson  v.  McLean,  1  E.  B.  &  E.  75  ;  Dixon 
V.  Caldwell,  15  Ohio  St.  412  ;  Stirling  v.  Garrittee,  18  Md.  468.  See  Chase  v.  Blaisdell,  4 
Minn.  90;  Justice  v.  Mendell,  14  B.  Monr.  12;  Hildebrant  v.  Brewer,  6  Tex.  45;  Carter  v. 
Feland,  17  Mo.  383 ;  Cassin  v.  Marshall,  18  Cal.  689. 

If  the  pi'operty  have  little  or  no  market  value,  the  actual  value  to  the  owner  is  the  just  rule. 
In  such  case  the  jury  may  consider  the  cost  of  replacing  the  property.  Stickney  v.  Allen,  10 
Gray,  352. 

The  Supreme  Court  of  Massachusetts  sustained  the  refusal  of  the  judge  at  Nisi  Prius  to 
qualify  the  rule  by  limiting  the  inquir}-  to  the  place  of  conversion.  It  might  have  been  impos- 
sible to  find  that  the  property  had  any  marketable  value  at  the  precise  spot  where  the  conver- 
sion took  place,  or  in  its  immediate  vicinity.     Selkirk  v.  Cobb,  13  Gray,  313. 

It  seems  to  have  been  held  hj  the  New  Y'ork  Court  of  Ajipcals,  that  the  value  of  foreign 
goods  in  an  action  of  trover  should  be  ascertained  by  the  custom-house  valuation  of  them  in 
this  country,  if  made  nearly  at  the  time  of  the  conversion.  Calfe  v.  Bcrtrand,  1  Hoav.  App. 
Cas.  224. 


CH.    XIX.]  RULES    IN    TROVER.  543 

should  a  plaintiff  be  rcmuneraterl,  for  Avbat  is  in  truth  an  injury 
to  his  feelings?  As  a  general  rule,  injuries  to  the  feelings  of 
the  plaintiff  are  not  subjects  of  legal  recompense,  except  when 
the  wrong  is  malicious.  To  authorize  such  a  recovery,  it  would 
seem  to  be  essential  at  least  that  the  defendant  should  have  been 
apprised  of  the  peculiar  value  set  upon  the  property  by  the 
owner,  and  that  he  should  have  disregarded  his  feelings.  And 
then  again,  to  what  extent  shall  the  jury  go  in  their  endeavor  to 
appreciate  the  various  motives  that  may  enter  into  the  plaintiff's 
estimate  of  the  article  ?  There  would  seem  to  be  great  intrinsic 
dithculty  in  permitting  recovery  on  these  grounds.  During  the 
existence  of  slavery  in  Mississippi  the  difficulty  was  partially  got 
over  in  regard  to  slaves,  by  permitting  the  owner  to  seek 
equitable  relief,  and  to  claim  a  specific  return  of  the  [475] 
property,  where  at  common  law  he  would  have  been 
limited  to  an  action  for  damages  *  ^ 

Rules  in  Trover.  Presumption  against  Wrong-doers. — We 
now  come  to  the  examination  of  the  rules  w^hich  govern  dam- 
ages in  the  common-law  action  of  trover,  or  in  actions  where 
redress  is  demanded  for  the  wrongful  conversion  of  specific  arti- 
cles of  personal  property. 

In  one  of  the  earliest  cases  on  the  subject  of  damages  in 
trover,!  where  the  action  was  brought  for  a  jewel,  several  of 
the  trade  being  examined  to  prove  what  a  jewel  of  the  first 
water,  of  the  size  in  question,  would  be  worth,  the  chief  justice 
of  the  King's  Bench  directed  the  jury,  that  unless  the  defendant 
produced  the  jewel  and  showed  it  not  to  be  of  the  first  water, 
"  they  should  presume  the  strongest  against  him,  and  make  the 
value  of  the  best  jewels  the  measure  of  their  damages ; "  which 
they  did.^ 

"  The  general  rule  in  trover,"  said  Patterson,  J.,  t  "  is  that  the 
damages  are  measured  by  the  value  of  the  thing  taken.  I 
never  knew  of  any  attempt  to  reduce  the  damages  by  showing 

*  Butler  V.  Hicks,  11    Sm.  &    Marsh.  78;         t  Armory  u.  Delamirie,  1  Strange,  504. 
Hull  V.  Clark,  14  Sm.  &  Marsh.  187.  |  Finch  v.  Blount,  7  Car.  &  Payne,  478. 

^  But  in  that  State  the  pretium  affectionis  could  not  be  considered  in  estimating  the  ralue  of 
a  slave.     Mosely  v.  Anderson,  40  Miss.  49. 

^  But  in  other  forms  of  action,  as  assumpsit  for  goods  sold,  or  debt  for  money  lent,  where 
there  is  no  fraud  in  the  defendant,  this  rule  is  reversed,  and  the  jury  will  be  instructed  to  pre- 
sume against  the  plaintitf 's  demand.  Thus,  in  the  fomier  case,  in  the  absence  of  evidence  as 
to  the  quality  of  hquor  in  bottles  sold  by  the  plaiutitf,  they  were  told  by  Lord  Ellenborough  to 
presume  the  bottles  were  tilled  with  the  cheapest  liquor  in  which  the  plaintiff  dealt.  Clunnes 
V.  Pezzy,  1  Camp.  8.  And  in  the  latter,  where  the  proof  was  simply  that  the  plaintiff  handed 
the  defendant  a  bank  note  in  reply  to  a  request  for  money,  the  English  Court  of  Exchequer 
held  that  the  jury  were  rightly  instructed  to  presume  it  to  have  been  of  the  lowest  denomina- 
tion.   Lawton  v.  Sweeney,  8  jur.  964. 


544  CONVERSION    OF    PERSONAL   PROPERTY.  [cil.    XIX. 

the  manner  in  which  the  goods  were  seized."  And  in  this  case, 
it  being  specially  pleaded  that  the  defendant  did  not  convert 
the  goods  claimed,  a  horse  and  cart,  evidence  was  refused  to 
show  that  they  did  not  belong  to  the  plaintiff.^ 


•# 


Special  Damages.  —  It  has,  however,  been  intimated  that 
special  damages  may  be  recovered  in  this  action  for  the  deten- 
tion of  the  property,  over  and  above  its  value.  It  was  sug- 
gested t  by  Parke,  B.,  at  Nisi  Prius,  that  the  plaintiff  could  re- 
cover special  damages  if  laid  in  the  declaration ;  as  in  trover  for 
the  conversion  of  a  horse,  that  the  plaintiff  could  recover  for 
money  paid  for  the  hire  of  other  horses.  And  it  has  been  so 
since  decided  by  the  Queen's  Bench,  in  trover  brought  by  a 
carpenter  for  his  tools ;  the  declaration  containing  an  allegation, 
that  by  reason  of  the  conversion  the  plaintiff  was  prevented 
from  working  at  his  trade. $  In  this  country,  however,  it  seems 
doubtful ;  the  doubt  resulting  from  the  technical  form  of 
[476]  the  action,  as  well  as  from  the  question  as  to  remoteness 
or  consequentiality  of  damages,§  ^ 

Qualifications  of  General  Rule  -^  The  general  rule,  making 
the  value  of  the  property  the  measure  of  damages,  is,  as  has 
been  said,  subject  to  many  qualifications ;  and  the  questions 
that  arise  as  to  compensation  in  this  action,  may  be  regarded  in 
six  points  of  view.  First,  as  to  the  time  when  the  value  of  the 
property  is  to  be  estimated,  in  a  case  of  simple  conversion. 
Secondly,  how  far  this  value  is  affected  by  the  right  in  which  the 

*  "  The  value  of  the  goods  which  have  not  and  in  Pennsylvania,  see  Farmers'  Bank  v. 

been  returned,"  says  Patterson,  J.,  in  Cook  v.  McKec,  2  Penn.  State  R.  318  ;  Starkie  Evid. 

Hartle,  8  Car.  &  Payne,  568,  "is  the  proper  p.  2,  1165,  Art.  Trover.    In  Stevens  v.  Low, 

measure  of  damages."  2  Hill,  132,  where  goods  having  been  sold  at 

t  Davis  V.  Oswell,  7  Car.  &  Payne,  804.  an  agreed  price,  to   be  paid  in  notes,  and  de- 

X  Bodley  v.  Reynolds,  21  April,  1846,  8  Q.  livered  conditionally,  and  the  condition  being 

B.  779.     See  also,  Moon  v.  Raphael,  2  Bing.  broken,  trover  was  brought  for  the  goods,  the 

(N.   C.)  310,  an   action  of    trover,  in  which  court  said  that  if  assumpsit  had  been  brought, 

Tindall,  C.  J.,  said,  "The  injury  of  which  the  the  plaintiff  would  have  been  entitled   to  the 

plaintiff's  complain  not  being  a  damage  neces-  agreed  value ;  but  that  in  trover  the  value  and 

sarily  consequent  on  the  wrongful  conversion  interest  was  the  true  measure,  and  that  the 

of   the  goods,  if  it  could  in   any  shape  fall  defendant  was   at  liberty  to   show   that   the 

within    the   remedy  of  an   action   of    trover,  value  of  the  property  was  much  less  than  the 

ought  at  least  to  have  formed  the  subject  of  a  agreed  price.     And  this  is  in  accordance  with 

special  allegation."  the   analogous  cases  brought  on  implied    or 

§  See   Brizsee  v.  Maybee,  21   Wend.   144 ;  express  warranties  of  chattels. 


1  So  in  Connecticut,  they  are  not  allowed.  Hard  v.  Hubbell,  26  Conn.  389.  But  there  are 
cases  where,  by  the  rule  in  some  of  the  States  of  the  Union,  additional  damages  immediately 
proximate  to  the  defendant's  wrong  act  may  be  proper,  as  where  the  plaintiff  being  the  true 
owner,  has  been  subjected  to  expense  and  loss  of  time  in  searching  for  property  unlawfully 
taken.  In  such  a  case,  a  reasonable  allowance  may  be  made  tor  the  time  and  expense  beyond 
the  value  and  interest.  McDonald  i;.  North,  47  Barb.  530 ;  Foi-syth  i;.  Wells,  41  Penn.  St. 
291.     And  see  post,  534  ;  also  post,  495,  note. 


CH.    XLX.]        RULE    WHERE    PROPERTY    FLUCTUATES   IN    VALUE.  545 

plaintiff  claims.  Thirdl/j,  what  is  the  rule  when  the  property 
has  been  changed,  or  increased  in  value,  as  where  logs  have 
been  made  into  plank,  cloth  into  clothes,  or  the  defendant  has 
otherwise  bestowed  his  labor  on  it.  FourthJij^  what  the  rule  is 
where  the  controversy  relates  to  negotiable  paper,  or  other 
choses  in  action.  Fifthly,  as  to  interest ;  and  ladlj,  as  to  mitiga- 
tion. It  should  be  noticed  here  that  it  is  well  settled  in  this 
country  that  the  rule  of  damages  in  this  form  of  action  is  a  pure 
question  of  law.  "  The  jury,"  said  the  Supreme  Court  of  New 
York,*  "  are  to  cascertain  the  quantum  of  damages,  according  to 
the  rules  of  law : "  such  is  the  language  of  all  the  cases,  and 
such,  indeed,  the  reasonable  rule  ;  for  trover,  though  nominally 
an  action  of  tort,  is  usually  brought  to  establish  a  mere  right  of 
property,  and  does  not,  like  trespass,  admit  of  evidence  in  aggra- 
vation.! 

EULE   WHERE    THE    PROPERTY    FLUCTUATES    IN    VaLUE. Where    a 

particular  chattel  has  been  wrongfully  appropriated  by  the  de- 
fendant, if  the  chattel  is  of  fixed  value,  there  seems  no 
difficulty  in  arriving  at  a  correct  measure  of  damages;-^  [477] 
but  if  the  property  be  of  fluctuating  value,  and  its  value 
or  price  has  actually  varied  between  the  period  of  the  wrongful 
appropriation,  or  conversion,  and  of  the  trial,  a  question  at  once 
arises,  at  ivhat  time  should  the  value  be  estimated.     And  several 
analogies  of  the  subject,  which  we  have  already  considered,  at 
once  suggest  themselves  to  the  mind.     The  rightful  proprietor 
in  these  cases  is  deprived  of  the  use  of  his  property  to  the  time 
of  trial ;  and  we  have  seen,  upon  sales  of  chattels,  where  the 
price  is  paid  in  advance,  and  also  in  regard  to  stock  contracts, 
that  the  defendant  has  on  this  ground  been  sometimes  compelled 
to  pay  the  highest  value  during  his  unlawful  possession ;  while 
in   other   cases,   this   consideration  has  not   been  allowed  any 

*  Saviip^e,  C.  J.,  in  Baker  v.  Wheeler,  8  appear  that  verj'  much  is  left  to  the  jury  in 

Wendell,  505.  each  particular  case. 

tin   England,  however,  as   we   shall   see,         So  in  Alder  v.  Keighlj,  15  M.  &  Wels.  117, 

this  seems  by  no  means  clear ;  and  from  the  Pollock,  C.  B.,  said,  "'if  this   had  been   an 

cases   of  Greening  v.   Wilkinson,    1    Car.   &  action  of  trover  for  the  bill,  no  doubt  it  would 

Payne,  625,  and  Whitehouse  v.  Atkinson,  3  have  been  altogether  a  question  for  the  jury 

Car.  &  Payne,  344,  cited  hereafter,  it  would  as  to  the  amount  of  damages." 

1  Where  the  value  of  the  property  is  fixed,  it  is  well  settled  that  the  rule  is  the  value,  to 
which  in  this  country  is  added  as  matter  of  law,  interest  from  the  time  of  the  conversion.  No 
other  rule  in  these  cases  indeed  could  be  adopted,  and  it  is  only  where  this  obvious  standard 
does  not  exist,  that  the  question  arises  which  the  author  proceeds  to  consider.  Andrews  v. 
Durant,  18  N.  Y.  496;  l\jng  v.  Orser,  431;  Tcnney  v.  State  Bank  of  Wisconsin,  20  Wis. 
152  ;  Hurd  v.  Hubbell,  26  Conn.  389  ;  Cook  v.  Loomis,  26  Conn.  483  ;  Vaughan  v.  Webster, 
5  Harring.  (Del.)  256;  Thrall  u.  Lathrop,  30  Vt.  (1  Shaw)  307;  Y^ater  v.  Mullen,  24  Ind. 
277 ;  Polk  v.  Allen,  19  Mo.  467  ;  Ryburn  v.  Prior,  14  Ark.  (Barb.J  505  ;  Cutter  v.  Fanning, 
2  Iowa,  580 ;  Hayden  u.  Bartlett,  35  Me.  203  ;  Repley  v.  Davis,  15  JNIich.  75. 
35 


546  CONVERSION    OF   PERSONAL   PROPERTY.  FcH.    XIX. 

If  i- 

weiglit.     The  same  doubts  exist  in  regard  to  the  rule  of  dam- 
ages in  the  form  of  action  which  we  are  now  considering, 

English  Rule.  —  This  question  was  early  considered  by  Lord 
Mansfield,*  where  a  motion  was  made  to  stay  proceedings  on 
bringing  the  chattel  into  court  with  costs  to  that  time.  The 
rule  was  refused  on  the  circumstances  of  the  particular  case ; 
but  his  Lordship  said,  — 

"  Where  trover  is  brought  for  a  specific  chattel,  of  an  ascertained  quantity 
and  quality,  and  unattended  with  any  circumstances  that  can  enhance  the  dam- 
ages above  the  real  value,  but  that  its  real  and  ascertained  value  must  be  the 
sole  measure  of  damages,  there  the  specific  thing  demanded  may  be  brought  into 
court ;  where  there  is  an  uncertainty  either  as  to  the  quantity  or  quality  of  the 
thing  demanded,  or  that  there  is  any  tort  accompanying  it  that  may  enhance  the 
damages  above  the  real  value  of  the  thing,  and  there  is  no  rule  thereby  to  estimate 
the  additional  value,  then  it  shall  not  be  brought  in."  ....  "In  trover  for 
money  numbered  or  in  a  bag,  the  jury  may  give  more  in  damages  ;  they  may 
allow  interest,  and  in  some  cases  they  ought."  .  .  .  .  "  When  the  thing  clearly 
remains  of  the  same  value,  yet  the  jury  may  give  damages  for  the  detention ;  and 
this  ought  to  be  done,  because  at  the  trial,  when  the  thing  remains  in  the  same 
condition,  there  generally  is  a  rule  to  deliver  it."  f 

[478]  A  good  deal  of  latitude  is  here  evidently  taken  as  to 
the  value  of  the  property,  though  nothing  is  said  as  to  the 
time  at  which  the  estimate  is  to  be  made.  The  discussion  also 
seems  to  assume  that  additional  damages  may  be  given  for  any 
tort  accompanying  the  conversion,  a  point  which  we  shall  have 
occasion  hereafter  to  notice ;  and  interest  and  damages  for  de- 
tention are  both  spoken  of  as  proper  in  particular  cases.t 

At  Nisi  Prius,  Lord  Ellenborough  in  an  action  of  trover  §  for 
bills,  limited  the  plaintiff's  recovery  to  the  amount  of  principal 

*  Fisher  v.  Prince,  3  Burrow,  1363  (1762).  Black.  902,  was  a  motion  by  defendant  in  an 

t  It  may  be  remarked  on  this  case,  that  this  action  of  trover  for  a  bond,  to  have  proceed- 

practice  of  staying  proceedings  on  delivery  of  ings   stayed  on   delivering  up  the  bond  and 

the  property,  though  still  in  use  in  England,  paying  cost.     But  the  plaintiti"  objecting  that 

Earle  v.  Holderness,  4  Bing.  462 ;  Tucker  v.  he  had  sustained  great  loss  by  the  detention 

Wright,  3  Bing.  601,  and  1    C.  &  M.  544,  is,  of  the  bond  till  after  the  death  of  the  obligor, 

it  is   believed,  little  known   in  this  country  and  insisting  on  his  right  to  go  for   special 

(Shotwell  V.  Wendover,  1  J.  R.  65),  the  courts  damages,  the  motion  was  denied, 

not  exercising  such  summary  power  over  the  And  in  Parker  v.  Norton,  6  Term  R.  695, 

proceedings.  an  action  of  trover,  Lawes  said,  arguendo  iu 

In  Stevens  v.  Low,  2  Hill,  132,  Cowen,  J.,  support  of  a  demurrer  to  a  plea  of  a  bankrupt 
said,  however,  "  It  is  quite  common  for  the  discharge,  — "  In  some  actions  of  ti-over,  in- 
courts  to  make  a  rule  stopping  the  action  on  deed,  the  specific  value  of  the  thing  converted 
a  re-delivery  and  payment  of  costs."  The  re-  may  be  a  criterion,  but  in  others  it  is  byjno 
ports  of  our  decisions  would  not  seem  to  war-  means  the  measure  of  damages."  And  the  de- 
rant  the  remark.  murrer  was  held  good. 

X  The  case  of   Whitten  v.  Fuller,   2   W.  §  Mercer  v.  Jones,  3  Camp.  476. 


CII.    XIX.]  RULE    IN    ENGLAND    AND    NEW   .YORK.  547 

and  interest  at  the  time  of  the  conversion.^  But  in  another 
case,*  where  trover  was  brought  for  East  India  Company  war- 
rants for  cotton,  which  had  risen  from  sixpence  per  pound  at 
the  time  of  the  conversion,  to  tenpence-halfpenny,  Abbott,  C.  J., 
pronounced  the  case  of  Mercer  v.  Jones  to  be  "  hardly  law,"  and 
said,  — 

"The  amount  of  damage  is  for  the  jury,  who  may  give  the  value  at  the  time 
of  the  conversion  or  any  subsequent  time  in  their  discretion  ;  because  the  plaintitF 
might  have  had  a  good  opportunity  of  selling  the  goods  if  they  had  not  been  de- 
tained. My  opinion  is,  that  the  jury  are  not  at  all  limited,  in  giving  their  ver- 
dict, by  what  was  the  price  of  the  article  on  the  day  of  the  conversioti." 

In  a  subsequent  case  f  the  same  eminent  judge  said,  that  the 
plaintiff  was  not  bound  by  the  sum  at  which  goods  were  sold  by 
the  defendant  at  auction,  "  but  wdiere  the  plaintiff  is  an  assignee, 
who  must  have  sold  the  goods  if  they  had  come  to  his  hands 
before  any  sale  by  the  sheriff,  it  often  happens  that  a  jury  considers 
the  sum  at  which  the  goods  were  actually  sold  at  auctio"n,  as  a 
fair  measure  of  damages."  ^ 

These  decisions  seem  to  leave  the  rule  of  damages  in  Eng- 
land, as  to  the  time  at  which  the  value  is  to  be  estimated, 
and  even  as  the  value  itself,  very  much  to  the  discretion  [479] 
of  the  jury.  And  such  is  the  apparent  construction  of 
the  recent  statute,^  by  which  it  is  declared  that  in  all  actions  of 
trover,  the  jury  may,  if  they  shall  think  fit,  give  damages  in  the 
nature  of  interest  over  and  above  the  value  of  the  goods  at  the 
time  of  the  conversion.     But  if  we  were  to  adhere  to  the  anal- 

*  Greening  v.  Wilkinson,  1  Car.  &  Payne,  t  Whitehouse,  Assignee,  v.  Atkinson,  Sher- 
625.  iff,  3  Car.  &  Payne,  344. 

t  3  &  4  W.  IV.  c.  42,  §  29  (Aug.  14,  1833). 

1  Such  is  held  to  be  the  rule  in  the  late  case  of  Falk  v.  Fletcher,  18  C.  B.  403  (1865); 
although  it  docs  not  appear  in  the  report  of  this  case  that  there  was  any  subsequent  enhance- 
ment of  the  market  value  of  the  goods,  and  the  motion  for  a  new  trial  which  was  made  by 
the  defendant  and  denied,  was  on  the  ground  of  surprise  as  to  their  amount.  But  where  the 
plaintiffs  contracted  with  R.  to  build  a  ship  for  them,  and  made  advances  from  time  to  time  in 
respect  of  her  ;  and  R.  gave  them,  as  sccuritj'  for  the  advances,  a  bill  of  sale  of  the  sliip,  which 
stated  that  he  (R.)  therel)y  did  sell,  transfer,  etc.,  to  the  plaintiffs  a  certain  ship  in  pro^.'-ress  of 
building  (describing  her),  to  have  and  to  hold  the  ship,  etc.,  to  the  plaintiffs  forever,  when  she 
should  be  completed  ;  the  defendants  having  converted  the  vessel  before  she  was  finished,  and 
having  finished  her,  the  plaintiffs  were  held  entitled  to  recover  as  damages  in  trover,  the  value 
of  the  vessel  at  the  time  of  her  convei'sion,  but  not  her  value  at  a  subsequent  time,  nor  as 
special  damage  the  vaUie  of  freight  which  the  plaintiffs  might  have  earned  with  her  if  R.  had 
completed  her  and  delivered  her  to  them.  Read  v.  Fairbanks,  24  Eng.  L.  &  E.  220.  S.  C. 
13  C.  B.  692.  Compare  Wood  v.  Bell,  6  Ellis  &  B.  355  ;  reversing  in  part,  S.  C.  5  Ibid.  772. 
And  it  does  not  appear  that  in  any  of  the  English  cases  an  intermediate  higher  value,  not 
maintained  to  the  day  of  trial,  has  been  adopted  as  the  measure  of  damages.  See  the  review 
of  the  English  decisions  in  Suydam  v.  Jenkins,  3  Sandf.  614,  ante,  266.  The  prevailing 
English  rule  in  the  case  of  stock  is  the  value  at  the  trial  (vide  infra  ;  in  other  cases  it  seems 
to  be  that  at  the  time  of  conversion. 

^  As  to  effect  of  sales  at  auctions  in  determining  value  of  chattels,  see  The  Columbus,  1 
Abbott's  Adm.  37  ;  S.  C.  Ibid.  97. 


648  CONVERSION    OF   PERSONAL   PROPERTY.  [CH.    XIX. 

ogy  of  the  cases  that  have  been  decided  there  as  to  stock  con- 
tracts,* ^  we  should  say  that  the  rule  of  damages,  when  the 
value  of  the  chattel  is  liuctuating,  ought  to  be  the  highest  value 
between  the  conversion  and  the  trial. 

New  York  Rule. — And  this  appears  to  be  the  rule  in  New 
York.  In  one  case,t  indeed,  it  was  said  that  it  was  undoubtedly 
correct  to  give,  as  the  damages  in  trover,  the  full  value  of  the 
property,  at  the  time  of  cojiversion,  and  interest  thereon  from  that 
time.^  But  this,  it  seems,  is  not  now  the  rule  in  that  State 
where  the  value  is  fluctuating,  t 

Li  an  action  of  assumpsit,§  brought  to  recover  the  value  of  a 
pledge  given  and  appropriated,  and  which  we  have  already  had 
occasion  to  cite  more  at  large,  Kent,  J.,  said, — 

"  The  value  of  the  chattel  a'  the  time  of  the  conversion,  is  not  in  all  cases  the 
rule  of  damages  in  trover.  If  the  thing  be  of  a  determinate  and  fixed  value,  it 
may  be  the  rule ;  but  where  there  is  an  uncertainty  or  fluctuation  attending  the 
value  of  the  chattel,  and  it  afterwards  rises  in  value,  the  plaintiff  can  only  be 
indemnified  by  giving  him  the  price  of  it  at  the  time  he  calls  upon  the  defend- 
ant to  restore  it ;  and  one  of  the  cases  even  carries  down  the  value  to  the  time 
of  the  trial." 

Again  in  an  action  of  assumpsit, ||  on  a  note  payable  in  specific 
articles,  the  court  held  the  measure  of  damages  to  be  the  high- 
est market  price  of  the  articles  in  question,  at  any  time  between 
the  notes  falling  due  and  the  time  of  the  trial,  saying,  "In  tro- 
ver, if  the  chattel  be  not  of  a  fixed  determinate  value,  its  worth 
at  the  time  of  conversion  is  not  the  rule  of  damages,  but  they 
may  be  enhanced  according  to  the  increased  value  of  the  chattel 
subsequent  to  that  time."][ 

*  Shepherd  v.  Johnson,  2  East,  211  ;  ante,  the  goods  at  the  time  of  conversion,  but  gave 

261.  no  evidence  of  the  price  they  actually  brought, 

t  Dillenback  v.  Jerome,  7  Cowen,  294.  A  point  being   made  as   to  the  measure  of 

X  In  Shotwell  v.  Wendover,  1  J.  R.  65,  the  damages,  Thompson,  J.,  said,  "  It  is  a  general 

court  said,  the  plaintiff  has  a  right  to  claim  rule  in  trover,  that  the  measure  of  damages  is 

damages  for  the  use  of  the  articles  (tools,  etc.),  the  value  of  the  property  at  the  time  of  the 

and  for  their  deterioration  while  in  the  posses-  conversion." 

sion  of  the  defendant.  See  also  to  S.  P.  Baldwin's  Administrators 

§  Cortelyou  v.  Lansing,  2  Caines'  Cases  in  v.  Harvey,  Anthon's  N.  P.  214. 

Error,  200 ;  ante,  384.  In  HaUett  v.  Novion,  14  J.  R.  273,  where 

II  West  V.  Wentworth,  3  Cowen,  82.  trover  was  brought  for  a  vessel  illegally  cap- 

1[  The  case  of  Kennedy  v.  Strong,  14  J.  R.  tured  on  the  high  seas,  the  judge  who  tried 

128,*  is  therefore  to  be  taken,  subject  to  the  the  cause  held,  that  the  measure  of  damages 

foregoing  observations.     That  was  an  action  was   the  value  of  the  cargo  at  the  time  and 

of  trover,  and  the  plaintiff  proved  the  value  of  place  of  capture,  with  such  additional  damages 

1  See  Vaughan  v.  Wood,  1  M,  &  K.  403  ;  Owen  v.  Routh,  14  C.  B.  327  ;  Forrest  v.  Elwes, 
4  Vescy,  491. 
^^  2  Such  is  the  rule  where  the  value  is  fixed.    Ante,  p.  477,  note  1. 


CH. 


XIX.] 


RULE   IN   MASSACHUSETTS. 


549 


Rule  in  Massachusetts.  —  In  Massaclmsetts,  on  the  [480] 
other  hand,  the  value  of  the  goods  at  the  time  of  the 
conversion  seems  to  be  the  rule.*  The  Supreme  Court  say, 
"  We  see  no  reason  for  departing  from  the  rule  which  we  think 
has  been  invariably  practiced  upon  in  this  State,  that  in  actions 
of  trover,  the  value  of  the  article  sued  for  at  the  time 


of  the  conversion  is  to  fix  the  damages. 


t^ 


[481] 


as  woukl  be  equal  to  the  interest  thereon,  and 
that  tlie  jury  in  deterniininfj  such  vuhio,  ought 
to  allow  the  prices  of  car<2:o  at  New  York,  for 
which  i)ort  the  vessel  was  bound  when  taken, 
deducting  a  reasonable  premium  of  insurance 
from  the  place  of  capture  to  New  York  ;  the 
restoration  of  the  brig,  and  the  avails  of  the 
cargo,  or  any  part  of  it  which  the  plaintiff  had 
received,  of  course  going  in  mitigation  of  dam- 
ages. This  case,  so  far  as  it  takes  the  time  of 
capture  as  establishing  the  rule  of  damages, 
does  not  agree  %vith  those  above  cited  ;  but  as 
the  case  was  reversed  in  error,  16  J.  R.  327,  on 
the  ground  that  the  capture  was  a  matter  of 
exclusive  admiralty  jurisdiction,  it  can  hardly 
be  regarded  as  an  authority. 

*  Kennedy  v.  Whitwell,  4  Pick.  466. 

t  Sec  also,  Sargent  v.  Franklin  Insur.  Co. 
8  Pick.  90 ;  and  Greenfield  Bank  v.  Leavitt, 
17  Pick.  1  ;  and  Johnson  v.  Sumner,  1  Met- 
calf,  172.  "The  general  rule  of  damages," 
says  Morton,  J.,  in  Pierce  v.  Benjamin,  14 
Pick.  356,  "in  actions  of  trover,  is  unques- 
tionably the  value  of  the  property  taken  at  the 
time  of  the  conversion."  See  also.  Fowler  i\ 
Oilman,  13  Met.  267.  In  Barry  v.  Bennett, 
7  Metcalf,  354,  it  was  held  in  Massachusetts, 
that  in  trover  by  a  mortgagee  of  property 
against  one  who  purchased  it  of  the  mort- 
gagor after  it  was  mortgaged,  and  sold  it  to  a 
stranger,  the  damages  are  the  value  of  the 
property  and  interest  thereon  from  the  time  of 
the  sale  by  the  defendant,  and  not  from  the 
time  of  his  purchase. 

So  also  in  Kentucky,  the  rule  takes  the  time 
of  conversion.  Lillard  c.  Whitaker,  3  Bibb, 
92  ;  Sproule  v.  Ford,  3  Littell,  25.  See  also, 
Outton  V.  Barnes,  Litt.  Selected  Cases,  137. 

In  Georgia,  when  the  property  is  of  an  un- 
deviating  value,  what  is  proven  to  be  its  worth 
w'hen  converted,  seems  to  be  the  criterion  of 
damages.  AVhen  the  value  fluctuates,  the  rule 
seems  in  that  State  unsettled.  Foster  v. 
Brooke,  6  Georgia,  287.  But  evidence  may 
be  given  of  the  value  at  the  time  of  trial,  as 
well  as  of  conversion.  Schley  v.  Lyon,  6 
Georgia,  530. 

In  Watt  V.  Potter,  2  Mason,  77,  the  mle  of 
the  value  at  the  time  of  the  conversion  was 
laid  down  by  Story,  J.  Watt,  the  plaintiif, 
sent  a  cargo  of  rum  to  Quebec.     The  master 


went  into  Newport,  and  there  fraudulently  (as 
was  alleged)  sold  the  vessel.  The  car;;()  in 
question  (the  importation  of  goods  by  British 
vessels  from  British  colonies  being  prohil>ited) 
was  landed  and  stored  with  the  defendant.  He 
refused  to  deliver  to  the  plaintiff's  agent,  and 
claimed  in  the  suit  to  deduct  from  the  market 
value  the  amount  of  duties  on  the  rum. 
Story,  J.,  said  to  the  jury :  "  The  last  ques- 
tion is,  what  is  the  rule  by  which  the  dam- 
ages, if  the  plaintiff  be  entitled  to  recover,  are 
to  be  assessed.  I  am  of  opinion  that  the  iiile 
is  the  value  of  the  property  at  the  market 
price,  at  the  time  of  the  conversion.  The  de- 
fendant claims  to  have  a  deduction  made  of 
the  amount  of  duties  which  would  accrue  on 
the  rum  if  regularly  imported.  At  first  I  in- 
clined to  think  this  deduction  was  reasonable ; 
but  on  reflection,  I  have  changed  my  opinion. 
No  duties  have  been  paid  upon  the  rum ;  no 
duties  are  by  law  payable,  for  the  rum  was 
prohibited  from  importation  from  Jamaica  in 
a  British  vessel,  by  the  recent  act  of  Congress. 
The  defendant  never  gave  any  bonds  for  the 
payment  of  duties,  and  is  in  no  shape  liable 
to  pay  them.  The  rum  was  landed  for  reex- 
portation, and  the  plaintiff  was  desirous,  with 
the  consent  of  government,  of  reexporting  it ; 
but  the  defendant  has  wrongfully  prevented 
the  reex])ortation.  "WHiat  right,  then,  can 
the  defendant  have  to  an  allowance  for  du- 
ties which  he  has  never  paid,  and  is  not  lia- 
ble to  ]3ay  ?  What  reason  is  there,  that  the 
plaintiff  should  suffer  a  loss  which  has  been 
occasioned  by  a  tortious  conversion  of  the  de- 
fendant ?  In  my  judgment,  it  does  not  lie  in 
the  mouth  of  a  wrong-doer  to  set  up  such  a 
claim.  The  duties  may  never  yet  Itecome 
I)ayable,  and  but  for  the  wrongful  act  of  the 
defendant  would  not  become  payable  ;  and  if 
any  loss  be  sustained,  it  should  be  borne  by 
the  party  through  whose  instrumentality  it 
has  occurred,  and  not  by  an  innocent  ship- 
per." 

"Where  trover  was  brought  for  slaves,  the 
rule  of  damages  seems  to  have  been  their 
value  at  the  time  of  the  conversion,  and  the 
value  of  their  labor  fi-om  that  time  in  addition 
to  the  value  of  the  pi'opertv.  Banks  v.  Hatton, 
1  Nott  &  McCord,  221  ;"  Schley  v.  Lyon,  6 
Georgia,  530. 


1  Although  the  rule  is  still  not  clearly  defined,  it  seems  now  nearly  settled  in  New  York 
that  in  actions  for  the  convei'sion  not  only  of  stock  but  of  any  personal  property  of  fluctuating 
value,  as  also  for  the  breach  of  executory  contracts  for  the  purchase  of  goods  which  are  paid 
for  ill  advance,  the  measure  of  the  damages  is  the  highest  market  price  which  the  property  may 


550  conversion  of  personal  property.  [ch.  xix. 

On  Principle,  the  Value  at  the  Time  of  Conversion  should 
Control,  unless  the  Plaintiff  is  deprived  of  some  Special  Use 
of   the    Property    Anticipated   by   the   Wrong-doer.  —  I  have 

have  had  from  the  date  of  the  conversion  to  the  end  of  the  trial,  provided  the  action  be  brought 
and  pressed  with  due  diligence.  This  rule,  which  had  been  substantially  adopted  by  the  Su- 
preme Court  of  the  State  in  the  first  district  (Wilson  v.  Mathews,  24  Barb.  295),  was  held  by 
tiie  Cotiirt  of  Appeals,  on  a  review  of  the  cases,  in  an  action  for  the  wrongful  conversion  of 
railway  shares  pledged  with  the  defendant  as  collateral  security  for  a  loan.  Komaine  v.  Van 
Allen,  26  N.  Y.  309.  In  this  case,  which  was  decided  in  March,  1863,  Mr.  Justice  Rosekrans 
delivering  the  opinion  of  the  Court  says :  "  Independent  of  the  authorities,  the  rule  appears  to 
me  to  be  reasonable  and  necessary  to  protect  the  owners  and  pledgers  of  the  stock  against  the 
tortious  acts  of  jjledgees,  if  the  plaintiff  commences  his  action  within  a  reasonable  time  after 
the  conversion,  and  prosecutes  it  with  reasonable  diligence."  The  reasoning,  however,  on 
which  the  decision  is  based,  applies  broadly  to  all  cases  of  the  conversion  of  chattels,  the 
learned  justice  using  the  following  language:  "Although  the  general  rule  of  damages  in  tro- 
ver may  be  the  value  of  the  chattel  at  the  time  of  its  conversion  with  interest,  or  that  value 
when  the  chattel  has  a  determinate  or  fixed  value;  yet,  when  there  is  any  uncertainty  or  fluct- 
uation attending  the  value,  and  the  chattel  afterwards  rises  in  value,  the  plaintiff  can  only  be 
indemnified  by  giving  him  the  price  of  it  at  soinc  period  subsequent  to  the  conversion ;  and 
the  necessary  result  of  all  the  decisions,  in  my  judgment,  is  that  in  such  cases  the  plaintiff  is 
entitled  to  I'ecover  the  highest  market  value  of  the  property  at  any  time  intermediate  the  con- 
version and  the  trial." 

In  the  case  of  Brass  v.  Worth,  40  Barb.  648,  decided  in  September  of  the  same  year,  which 
was  also  an  action  for  the  conversion,  by  a  wrongful  sale,  of  stock  which,  by  special  arrange- 
ment of  the  parties,  had  been  purchased,  and,  as  was  adjudged,  should  have  been  held  by  the 
defendant  for  the  plaintiff's  account,  a  somewhat  different  rule  was  adopted  by  the  Supreme 
Court  of  the  State.  The  measure  of  damages  was  held  to  be  in  reference  to  certain  stock,  its 
value  on  the  day  when  the  plaintiff  demanded  a  return  of  it,  and  in  reference  to  certain  other 
stock  which  had  not  been  demanded,  the  difference  between  its  market  value  on  a  certain  day, 
which  was  "  a  reasonable  time  after  the  sale,  and  the  cost  price  of  the  defendant's  purchase 
thereof,  with  the  interest." 

But  the  case  of  Romaine  v.  Van  Allen  was  adhered  to  by  the  court  of  last  resort  in  that  of 
Burt  V.  Dutcher,  34  N.  Y.  493,  which  was  an  action  for  the  conversion  of  hops,  and  was 
lately  followed  by  the  Supreme  Court  of  the  State,  in  an  action  for  the  conversion  of  barley. 
Morgan  v.  Gregg,  46  Barb.  183. 

The  main  question  now  before  us  was  again  very  fully  considered  by  the  New  York  Court  of 
Appeals,  in  an  action  by  a  i^rincipal  against  his  factor  for  the  conversion  of  wheat  by  a  sale  in 
violation  of  instructioias. 

In  this  case  the  plaintiffs,  who  resided  in  Cleveland,  Ohio,  having  certain  wheat  in  the  de- 
fendant's store  at  Bufhilo,  on  the  12th  day  of  July,  1853,  telegraphed  to  the  defendants  at  that 
city  to  sell  it  the  same  day  at  $1 .08  a  bushel,  and  if  it  were  not  sold  on  that  day,  to  ship  it  to 
New  York.  The  defendants  accordingly  offered  the  wheat  the  same  day  to  a  person  who  de- 
sired to  be  .allowed  until  the  following  morning  to  inspect  it  and  decide  on  the  purchase.  To 
this  the  defendants  assented,  provided  no  news  were  received  in  the  mean  time  affecting  the 
value,  and  at  eight  o'clock  the  next  morning  he  took  the  wheat  at  the  price  named.  The  case 
having  been  tried  by  the  court  at  Nisi  Prius  without  a  jury,  the  sale  w.as  foimd  to  have  been 
in  good  faith,  but  not  having  been  made  on  the  d.ay  to  which  the  defendants  were  limited  by 
their  instructions,  it  was  adjiulged  a  conversion  of  the  wheat  by  them.  The  court  fixed  the 
29th  of  November  in  the  same  year  as  the  time  within  which  the  plaintiff  might  reasonably 
h.ave  brought  the  action. 

In  the  Court  of  Appeals  the  case  was  twice  argued.  On  the  first  argument  the  court  was 
equally  divided.  On  a  reargument  before  a  court  differently  constituted,  the  four  judges  who 
opposed  the  severer  rule,  being  no  longer  on  the  bench,  the  following  conclusions  were  adopted 
in  an  opinion  delivered  in  September,  1864,  the  court  considering  that  in  the  absence  of  fraud, 
misrepresentation,  or  willful  misconduct,  there  is  no  difference  in  the  rule  of  damages,  whether 
the  .action  be  for  breach  of  a  contract  or  for  a  violation  of  duty. 

Where  damages  are  sought  for  the  breach  of  a  contract  for  the  sale  of  personal  property 
wholly  executory  on  both  sides,  the  true  rule  is  the  difference  between  the  price  named  in  the 
contract  and  the  m.arket  price  at  the  time  fixed  for  performance.  This  is  on  the  ground  that 
as  nothing  has  been  paid  by  the  plaintiff,  he  can,  if  he  still  wish  the  property,  buy  it  in  the 
market  at  the  contract  price,  with  such  further  sum  as  the  rise  in  the  market  comi)cls.  And 
if  he  prefer  not  to  buy  it  at  the  advanced  rate,  he  can,  without  doing  so,  recover  a  sum  equal  to 
the  above  difference. 

But  where  the  executory  contract  has  been  performed  on  the  part  of  the  plaintiff  by  the 
rayment  of  the  price,  and  broken  by  the  defendant  liy  not  delivering  the  property',  the  true  nile 
IS  to  allow  the  plaintiff  the  highest  market  price  between  the  time  of  the  conversion  and  that 


CH.    XIX.]  TIME   FOR   COMPUTING    VALUE.  551 

already  had  occasion  to  notice  the  claim  of  damages  for  the  rise 
of  property,  which  has  been  sold  and  its  price  paid,  between  the 

of  the  beginning  of  an  action  brouglit  within  a  reasonable  time,  and  jjerliaps  np  to  the  trial  of 
a  suit  tlius  be-jiin  and  diligently  pressed.  This  is  on  the  principle  that  it  might  be  inconven- 
ient or  impossible,  and  is  unjust  to  oblige  the  plaintiff  in  order  to  procure  an  article  like  that 
illegally  converted,  to  pay  the  contract  price  a  second  time  with  the  added  amount  which  the 
market"  value  mav  then  re(]uire,  and  that  it  is  more  equitable  to  hold  the  defendant  responsible 
for  the  tiuciuatioii  in  the  market  as  long  as  he  continues  to  deprive  the  plaintiff  of  the  article, 
uj)  to  the  ])eriod  when,  by  the  legal  effect  of  a  verdict,  the  title  is  transferred  from  the  plaintiff 
to  the  defendant. 

What  is  a  reasonable  period,  after  the  conversion,  within  which  the  damages  must  be  esti- 
mated, is  not  definitely  settled,  and  ]irobably  depends  on  the  circumstances  of  the  case.  The 
plainfiff  should  not  be  permitted  to  range  through  the  whole  time  between  the  conversion  and  the 
period  when  the  statute  of  limitations  would  attach,  for  the  purpose  of  discovering  the  highest 
price  at  which  the  property  might  sell  in  the  market.  This  would  give  the  transaction  the 
color  of  a  mere  speculation  and  not  of  a  just  ascertainment  of  the  actual  damages.  But 
■where  the  party  holds  the  property  for  the  purpose  of  sale,  a  reasonable  period,  according  to  the 
coursp  of  ?/-a(/(?, "should  be  allowed  for  the  purpose  of  making  such  sale.  If  there  were  no  evi- 
dence as  to  what  is  a  reasonable  period,  it  would  probably  be  a  question  of  law ;  if  there  were 
such  evidence,  it  might  be  a  mixed  question  of  law  and  fact,  Scott  v.  Rogers,  31  N.  Y.  676. 
See  opinion  of  the  court  per  Hogeboom,  J. 

In  answer  to  the  objection  that  the  fluctuating  rule  conflicts  with  the  principle  that  prospec- 
tive and  uncertain  profits  ought  not  to  be  permitted  to  enter  into  the  assessment  of  damages, 
it  was  said  by  Denio  J.,  in  an  opinion  delivered  on  the  first  hearing  of  the  case,  that  the  price 
to  be  obtaine'd  for  a  given  article  of  merchandise,  cannot  be  said  to  be  of  an  uncertain  or  specu- 
lative character  within  the  sense  of  the  rule  by  which  such  profits  are  excluded. 

The  case  of  factors  or  other  agents  who,  by  their  wrongful  acts,  have  deprived  an  owner  of 
his  right  to  dispose  of  his  property  according  to  his  own  notions  of  his  interest,  stands  on  the 
same  footing  in  this  respect  (it  was  said  by  the  same  learned  justice  in  the  same  opinion)  with 
that  of  a  i)urehaser  by  contract  who  has  paid  the  price  in  advance.  Both  have  an  absolute, 
right  to  judge  whether  they  will  dispose  of  it  at  one  time  or  another,  and  if  they  are  limited 
to  the  vailue  at  the  time  of  the  wrongful  act  or  omission  which  creates  the  cause  of  action,  they 
will,  in  many  cases,  fail  to  receive  an  adequate  indemnity  for  the  injury. 

In  an  opinion  delivered  by  Marvin  J.,  on  the  first  argument  of  the  cause,  the  views  thus 
finally  adopted  were  combated  in  a  very  full  and  careful  opinion,  in  which  it  was  held  that  the 
defendants  had  put  themselves  in  the  position  of  a  carrier  who,  having  received  goods  and  un- 
dertaken their  carriage  to  a  certain  market,  foils  to  deliver  the  goods  at  such  destination,  and 
that  the  true  criterion  of  damages  was  the  value  of  the  wheat  in  New  York,  at  the  time  it 
would  have  arrived,  had  the  plaintiff's  instructions  been  obeyed,  less  the  amount  the  plaintiff 
had  realized,  and  the  expenses  which  would  have  attended  the  transportation  to  and  sale  in 
New  York,  adding  interest  on  the  difference  to  the  time  of  trial.  All  damages  beyond  this, 
the  learned  judge  held  to  be  speculative,  contingent,  and  remote,  and  not  the  natural  and 
proximate  consequence  of  the  tortious  act.  He  also  held,  on  a  very  careful  examination  of 
the  authorities,  that  in  the  case  of  the  breach  of  an  executory  contract  for  the  delivery  of 
goods  at  a  future  day,  there  should  be  no  distinction  in  the  rule  ol*  damages,  founded  on _  the 
payment  of  the  pri"ce  in  advance,  and  that  the  rule  sought  to  be  established  in  those  actions 
and  in  trover,  by  which,  where  the  value  of  the  property  is  fluctuating,  the  damages  are  en- 
hanced according  to  the  increase  of  its  value  subsequent  to  the  conversion,  is  not  fairly  justi- 
fied l)y  authority,  not  sound  in  law,  and  in  practice  is  uncertain,  inequitable,  and  dangerous. 

In  Pennsylvania,  in  the  ease  of  the  conversion  of  stocks,  the  value  at  the  trial,  in  accordance 
with  the  English  rule  in  that  class  of  actions,  is  held  to  be  the  rule.  ^  Musgrave  v.  Beckendorff, 
53  Penn.  St.  310;  S.  C.  6  Am.  Law  Reg.  (N.  S.)  433.  So  in  an  earlier  case,  the  Supreme 
Court  of  that  State,  after  stating  the  general  rule  in  trover,  say  that  it  does  not  apply  "where 
the  article  coidd  not  be  obtained  elsewhere,  or  where  from  restrictions  on  its  production 
or  other  causes  its  price  is  necessarily  subject  to  very  considerable  fluctuations."  In  the 
case  of  bank  stock  which  is  within  this  exception,  the  ordinary  rule,  it  is  said  by  the  learned 
court,  would  hold  out  temptations  to  acts  of  wrongful  conversion,  by  making  them  profitable 
to  the  wrong-doer,  since  the  bank  or  any  other  trustee  might  deprive  the  owner  of  the  very 
advantage  he  had  in  view  when  he  made  the  investment.  Bank  of  Montgomery  v.  Reese,  26 
Penn.  (2  Casey)  143  ;  ante,  269,  note  1 .  In  a  late  case  in  Mississippi  ( Whitfield  v.  Whitfield,  40 
Miss.  3.52),  the  high  court  of  errors  and  aj)peals,  while  rejecting  the  fluctuating  rule,  main- 
tained the  following  exceptions  to  the  fixed  rule  of  the  value  and  interest.  First,  where  the 
original  act  was  wrongful  ;  second,  where  it  was  bona  Jide,  but  the  defendants  subsequently 
disposed  of  the  property  wrongfully,  and  with  knowledge  of  the  plaintiff's  claim  ;  third,  where 
the  taking  and  disposition  of  the  property  were  both  in  good  faith,  but  the  plaintifl"  seeks  to 
retain  the  excess  of  the  proceeds  of  the  sale  over  the  market  value  at  the  time  of  the  conver- 


552  CONVERSION    OF    PERSONAL   TROPERTY.  [ciI.    XIX. 

time  when  the  cause  of  action  accrues  and  that  of  trial  *  and 
the  analogous  question  where  the  use  of  projDertj  is  withheld  ;t 

*  Ante,  260,  et  seq.  t  Ante,  385,  et  seq. 

sion  "as  a  speculation  ;"  and  fourth,  where  the  property  has  some  peculiar  value  to  the  plain- 
tiff, and  is  willfully  taken  or  witlihcld  by  the  defendant.  In  the  several  classes  of  cases  thus 
excepted  by  the  learned  court,  the  rule  of  compensation,  in  its  opinion,  is  abandoned,  and  the 
damages  are  left  at  large  to  the  jury.  The  last  exception,  however,  as  we  think,  with  defer- 
ence, might  be  properly  included  in  the  preceding  ones.  The  New  York  rule  is  adopted  in 
Wisconsin,  Weymouth  v.  Chicago  and  Northwestern  Railway  Co.  17  Wis.  5.50;  Iowa,  Can- 
non V.  Folsom,  2  Iowa,  101  {ante,  261)  (but  see  for  a  qualification  of  the  rule  in  Iowa,  p. 
280,  note ;  in  California,  Douglass  v.  Kraft,  9  Cal.  562  ;  South  Carolina,  Kid  v.  Mitchell,  1 
Nott  &  M'Cord,  334  ;  and  Alabama,  Ewing  v.  Blount,  20  Ala.  694  ;  Jenkins  v.  McConieo,  26 
Ala.  213.  In  the  latter  State  the  same  rule  obtains  in  an  action  of  detinue.  Johnson  v.  Mar- 
shall, 34  Ala.  522. 

But  in  New  Hampshire,  in  the  case  of  Pinkerton  v.  Manchester  and  Lawrence  Railroad,  42 
N.  H.  424,  after  a  review  of  the  cases,  this  rule  is  disapproved,  and  the  value  of  the  articles 
which  should  have  been  delivered,  at  the  time  of  the  failure  to  deliver  them,  is  held  to  be  the 
just  and  convenient  one.  The  court  say  that  "  to  hold  that  the  plaintiff  might  elect  as  the 
rule  of  damages  in  all  cases,  the  highest  market  price  between  the  time  fixed  for  delivery  and 
the  day  of  trial,  which  is  often  many  years  after  the  breach,  would  in  many  cases  be  grossly 
unjust,  and  give  to  the  plaintiff  an  amount  of  damages  disproportionate  to  the  injury.  For,  in 
most  of  these  cases,  had  the  articles  been  delivered  according  to  contract  they  would  have  been 
sold  or  consumed  within  the  year,"  in  which  case,  the  plaintiff  would  have  reaped  no  benefit 
from  the  future  increase  of  prices.  "  So  there  may  be  repeated  trials  of  the  same  case  by  re- 
view, new  trial,  or  otherwise.  Shall  there  be  a  different  measure  of  value  at  each  trial  1" 
The  learned  court  then  proceed  to  say  that  both  in  the  case  of  stoeks  purchased  for  permanent 
investment,  and  of  those  intended  to  be  sold  soon,  the  fluctuating  rule  would  be  unjust.  In 
the  one  case,  a  profit  is  given  to  the  purchaser  not  contemplated  by  him  in  making  his  pur- 
chase, and  in  the  other,  the  right  to  elect  their  value  during  the  years  which  may  often  elapse 
before  the  trial,  "  would  be  giving  him  Hot  indemnity  merely,  bixt  a  power  in  many  instances 
of  unjust  extortion."  And  the  rule,  thus  settled  in  that  State,  is  adhered  to  in  the  subsequent 
case  of  Frothingham  v.  Morse,  45  N.  H.  545.  In  California,  although  the  New  York  rule  is 
adopted,  it  is  said  that  "  some  qualification  of  the  rule  may  be  found  necessary  where  there 
has  been  an  unreasonable  delay  in  bringing  suit,  or  under  certain  special  circumstances." 
Hamer  v.  Hathaway,  33  Cal.  117.  So  in  Massachusetts,  Maine,  Maryland,  Illinois,  Kentucky, 
Louisiana,  Michigan,  Mississippi,  and  Nevada,  the  rule  of  an  intermediate  higher  value  is  re- 
jected. See  Wyman  v.  American  Powder  Works,  8  Cush,  1 68 ;  Hussey  v.  Manufacturers'  and 
Mechanics'  Bank,  10  Pick.  415;  Robinson  v.  Barrows,  48  Me.  186  ;  Hayden  v.  Bartlett,  35  Me. 
203  ;  Smith  v.  Dunlop,  12  111.  184  ;  Keaggy  v.  Hite,  12  111.  99  ;  Otter  v.  Williams,  21  111.  118 ; 
Freeman  v.  Luckctt,  2  J.  J.  Marsh.  390;  Vance  v.  Tourne,  13  Lou.  R.  225;  Symes  v.  Oliver, 
13  Mich.  9  ;  Whitfield  v.  Wliitfield,  40  Miss.  362,  supra ;  O'Meara  v.  The  North  American 
Mining  Co.  2  Nevada,  112.  And  such  also  appears  to  be  the  case  in  Connecticut  and  Mis- 
souri. Hnrd  v.  Hubbell,  26  Conn.  389  ;  Walker  v.  Borland,  21  Mo.  279  ;  and  also  in  Georgia, 
where  the  conversion  is  not  a  continuing  one,  but  begins  and  ends  in  a  single  act  as  a  sale. 
Dorsett  v.  Frith,  25  Geo.  537.  It  is  true  that  the  objections  of  the  Supreme  Court  of  New 
Hampshire  to  the  rule  in  New  York,  are  to  some  extent  met  by  the  qualification  of  it,  which 
holds  the  purchaser  to  a  reasonable  time  in  bringing  his  suit,  and  due  diligence  in  its  prosecu- 
tion. But  with  great  deference,  we  are  constrained  to  say,  in  reference  to  this  vexed  jioint, 
that  the  law  of  New  York,  as  it  seems  at  present  established,  seems  to  us  unsatisfactory  both 
because  of  the  incompleteness,  uncertainty,  indefiniteness,  and  want  of  uniformity  in  the  rule 
adopted,  and  because  it  departs  from  the  principle  of  compensation  for  actual  loss.  The  de- 
cision in  the  case  of  Scott  v.  Rogers  was  of  a  negative  character.  The  rule  in  that  case 
allows  the  plaintiff  to  fix  his  own  damages  after  a  retrospect  of  the  market  since  the  conver- 
sion, by  selecting  the  highest  market  rate  of  the  property  during  that  time,  provided  within  a 
reasonable  time  after  the  conversion,  he,  by  bringing  the  action  or  otherwise,  gives  the  defend- 
ant notice  of  the  day  thus  selected.  But  the  court  simply  approved  the  measure  adopted  in 
that  case  by  the  judge  before  whom  it  was  tried,  as  not  unreasonable  in  itself  and  not  unjust  to 
the  defendant. 

Tliey  considered  that  they  could  not  say  that  four  months  after  the  time  when  the  wheat,  if 
duly  forwarded,  would  have  reached  its  destination,  was,  as  matter  of  law,  an  unreasonable 
time  for  bringing  the  suit,  and  that,  as  matter  of  fact,  they  had  no  power  to  review  the  finding 
of  the  judge.  But  the  decision  does  not  undertake  to  reverse  or  modify  the  still  wider  rule 
previously  adopted  in  the  case  of  Romaine  v.  Van  Allen.  That  rule,  in  the  later  case  of  Burt 
V.  Dutcher  {supra),  was  re-afiirmed  by  the  same  court.  The  latter  case,  as  we  have  observed, 
w«s  an  action  for  the  conversion  of  merchandise ;  and  in  the  former,  as  we  have  also  noticed, 


i 


CH.    XIX.]  TIME   FOR   COMPUTING    VALUE.  553 

and  we  have  seen  that  different  rules  have  been  prescribed  by 
different  tribunals.     The  same  analogies  should  govern  in  tro- 


the  court  docs  not  proceed  upon  the  p:round  of  any  distinction  between  stocks  and  other  per- 
sonal pro]iort_v,  in  tlic  ap])iication  of  the  rule.  • 

Whctlicr  such  a  distinction  should  he  in  fact  recognized,  is  a  matter  of  much  nicety.  la 
Entjland,  it  exists  so  far  tiiat  in  the  case  of  stocks,  their  value  at  the  time  of  the  trial  instead 
of  that  of  the  conversion,  furnishes  the  measure,  and  we  have  seen  that  it  is  adopted  in  Penn- 
sylvania and  Connecticut  (supra;  see  also,  pp.  268  and  269),  as  is  seen  in  the  text.  So  in  the 
case  of  Suydain  v.  Jenkins,  it  is  justified  on  the  ground,  "first,  that  as  chancery  could  decree 
a  specific  execution  of  a  contract  for  replacing  stock,  and  the  defendant,  when  such  a  decree  is 
made,  must  of  necessity  purchase  the  stock  at  its  then  market  })rice,  he  can  have  no  right  to 
complain  when  he  is  compelled  to  jiay  the  same  sum  as  damages,  by  the  judgment  of  a  court  of 
law  ;  and  second,  that  as  stock  is  usually  held  not  for  sale,  but  as  a  permanent  investment,  it  is  a 
reasoual)le  presumption  that  had  it  not  been  replaced  at  the  stipulated  time,  the  plaintiff  would 
have  retained  its  possession  until  the  day  of  trial,  and  hence  its  price  at  that  time,  whatever  it 
might  be,  is  no  more  than  an  indemnity."  These  are  doubtless  the  reasons  commonly  assigned 
for  the  distinction.  But  it  may  be  ol)served  that  it  is  moi'e  than  questionable  whether  a  decree 
can  he  had  for  the  specific  performance  of  an  agreement  for  the  delivery  of  shares  in  the  public 
funds,  or  such  other  stocks  as,  from  their  well  known  and  permanent  character,  are  usually 
sought  for  investment.  Breaches  of  such  contracts  are  readily  compensated  in  damages,  and 
are  not  therefore  the  subject  of  equitable  relief.  Story  Eq.  Jur.  §§  717,  717rt,  eighth  ed.  by 
Eedfield ;  Buxton  v.  Lister,  3  Atk.  383 ;  Sullivan  v.  Tuck,  1  Md.  Ch'y  Decisions,  59. 

And  in  regard  to  such  stocks  as  are  of  fluctuating  value,  we  think  the  presumption  may  he 
quite  as  ap])licable  to  them  as  to  any  other  property,  that  they  were  bought  for  s])eculative 
pui"poses  rather  than  to  hold  for  investment,  so  far  as  this  is  fi  question  of  usage  or  law,  inde- 
pendently of  the  facts  of  a  pacticular  case. 

We  are  inclined,  therefore,  to  agree  with  the  author  that  there  is,  on  jirinciple,  no  solid 
ground  for  the  distinction. 

However  this  may  be,  the  rule  in  New  York,  as  we  have  seen,  is  not  based  upon  such  a  dis- 
tinction if  it  exist,  and  to  this  rule  we  find  serious  objections. 

In  the  first  place,  as  we  have  said,  it  is  indeterminate.  What  is  a  reasonable  time  for  bring- 
ing the  suit  may  depend  on  considerations  quite  independent  of  indemnity  to  the  plaintiff,  and 
in  cases  of  willful  conversion  quite  independent  also  of  punishment  to  the  defendant.  Is  the 
question  for  the  court  or  for  the  jury  1  If  for  the  court,  on  what  basis  can  it  intelligently  lay 
down  a  uniform  rule  on  the  subject  ?  If  for  the  juiy,  how  can  the  jury  be  competent  to  deal 
with  it  ?  If  it  be  a  question  of  mixed  law  and  fact,  as  suggested  by  the  learned  judge  who 
delivered  the  opinion  of  the  court  in  Scott  v.  Eogers,  where  is  the  line  to  be  drawn,  and  what 
are  the  elements  of  a  rule  on  the  subject? 

In  the  case  of  Scott  v.  Rogers,  the  period  of  four  months  and  sixteen  days  was  determined 
by  the  court  as  a  reasonable  time  within  which  to  bring  the  suit,  which  was,  in  fact,  not 
brought  until  March,  1858,  four  years  and  eight  months  after  the  conversion.  What  were  the 
data  for  this  conclusion,  nor  why  it  was  a  more  reasonable  period  than  four  months  or  any 
other  period  would  have  been,  does  not  appear,  except  that  it  was  suggested  by  the  learned 
judge  who  delivered  the  opinion  of  the  Court  of  Appeals,  that  the  termination  of  canal  naviga- 
tion in  the  winter  "  might  perhaps  be  supposed  to  have  some  probable  influence  in  raising  the 
market  price  of  the  property  in  New  York,  and  therefore  not  unlikely  to  induce  the  plaintiff  to 
retain  the  property  until  that  time."  With  great  deference,  this  conjecture  seems  a  very  un- 
certain basis  for  the  action  of  the  court  below.  Perhaps  the  fact  that  on  the  29th  of  Novem- 
ber, the  last  day  of  the  period  fixed,  the  market,  as  appears,  actually  reached  a  higher  point 
than  in  any  jjreceding  fluctuation  since  the  conversion,  may  have  equally  influenced  the  judg- 
ment of  the  court  below,  although  that  fact  was  quite  irrelevant. 

In  the  case  of  Romaine  v.  Van  AUen,  the  action  was  brought  seven  months  after  the  conver- 
sion, which  period  seems  to  have  been  thought  a  reasonable  time  for  doing  so.  In  that  case 
the  stock  between  the  time  of  the  conversion  and  the  beginning  of  the  trial,  rose  from  $3,937.50, 
which  was  its  full  market  price  on  the  day  of  the  conversion,  to  $5,962.50  before  the  trial  be- 
gan. The  trial,  which  was  before  a  referee,  was  a  protracted^one,  and  during  its  progress  the 
stock  happened  to  rise  in  the  market  to  the  price  of  $8,175,  which  was  the  highest  reached  be- 
fore the  triiil  ended,  and  was  the  amount  allowed.  Here  we  have  this  remarkable  result  of  the 
application  of  the  rule  adopted,  that  from  the  fact  that  the  trial  was  had  before  a  referee,  in- 
stead of  the  court,  or  a  court  and  jury,  the  plaintiff  gained  upwards  of  $2,000  in  the  amount 
of  the  judgment.  It  is  difficult  to  see  how  the  principle  of  compensation  could  justify  this 
windfall.  Again,  if  the  action  wei"e  brought  in  the  eit}'  of  New  York,  where  the  courts  are 
often  oppressed  with  business,  it  might  be  that  the  suit,  although  prosecuted  with  proi)er  dili- 
gence, could  not  be  tried  within  a  much  longer  time  than  if  it  were  in  a  contiguous  county. 
Ou  the  princiijle  now  established,  the  verdict  for  the  same  conversion,  although  obtained  with 


554  CONVERSION  OF  PERSONAL  PROPERTY.       [cil.  XIX. 

ver;  and  it  appears  to  me,  that,  on  principle,  unless  the  plaintiff 
has  been  deprived   of  some  particular  use   of  his  property,  of 

proper  diligence,  might  1)C  doulile  if  tlic  suit  were  brought  in  one  county  what  it  would  be  in 
another  wliere  the  same  obstacles  to  an  immediate  or  speedy  trial  did  not  exist. 

The  same  result  may  follow  if  the  action  is  brought  in  one  of  several  coordinate  tribunals  in 
which,  from  the  greater  pressure  of  business  or  the  lesser  amount  of  judicial  force,  the  suit  can- 
not be  so  soon  determined  as  if  it  had  chanced  to  be  instituted  in  another.  What  a  lottery 
does  our  system  of  determining  the  compensation  in  this  class  of  cases  become,  if  the  amount  ot 
compensation  is  on  the  one  hand  doubled  or  trebled,  or  on  the  other  divided  or  decimated  liy  the 
accident  of  venue  ! 

So,  many  other  circumstances,  examples  of  which  will  occur  to  every  lawyer,  might,  without 
the  plaintiff's  fault,  affect  the  time  when  the  case  should  be  tried,  and  therefore  the  amount  of 
damages,  which  on  any  principle  of  justice  or  compensation,  would  be  utterly  irrelevant  to  its 
merits. 

Another  serious  objection  to  the  rule  is,  that  the  reason  of  it  does  not  apply  where  the  goods 
were  purchased  for  use,  or  for  some  other  purpose  than  for  sale,  nor  even  when  they  were 
bought  for  sale,  unless  the  advance  occurred  within  the  period  during  which  they  would  have 
been  sold  in  the  ordinary  course  of  business.  So  in  the  case  of  property  which  from  its  nature 
would  have  perished,  or  in  the  case  of  articles  intended  for  consumption  which  would  have  been 
consumed  within  a  limited  period,  the  time  of  the  fluctuation  of  the  market  within  which  the 
price  is  to  be  determined,  ought  not  on  any  principle  of  compensation  to  go  beyond  such  period. 
In  the  very  case  in  which  the  rule  is  least  objectionable,  that  of  goods  intended  for  sale, 
indemnity  would  require  that  it  be  confined  to  such  as  were  or  may  be  presumed  to  have  been 
meant  for  sale  indefinitely  in  point  of  time.  Where  goods  were  to  have  been  sold  either  im- 
mediately or  within  a  certain  fixed  period,  the  range  of  the  plaintiff's  right  of  selection  should, 
on  the  same  principle,  be  narrowed  to  the  time  of  the  intended  sale.  In  each  case,  the  facts 
and  circumstances  showing  what  would  have  been  the  probable  disposition  of  the  property  by 
the  owner  should  seem  material  in  showing  his  actual  loss,  and  therefore  in  ascertaining  the 
proper  indemnit}^  It  seems  grossly  inequitable  that  the  owner  should  have  the  advantage 
of  a  chance  rise  in  value,  which  it  is  certain  he  had  never  contemplated  and  would  not  have 
taken  advantage  of,  had  the  property  remained  in  his  possession.  The  want  of  uniformity  in 
the  rule  and  the  numerous  exceptions  which  must  be  engrafted  on  it,  seem  grave  objec- 
tions. 

So  again,  the  rule  departs  fi-om  the  analogy  of  the  general  principle  by  which  interest  on  a 
sum  of  money  due  and  unpaid,  or  on  the  value  of  property  wrongfully  withheld,  is  the  measure 
of  damage.  Such  interest,  as  we  have  seen,  is  allowed  in  America  as  a  legal  right,  and  for  this 
legal  right  it  substitutes  the  chance  of  winning  a  prize. 

Again,  the  conversion  may  have  been  purely  technical,  the  result  of  a  misapprehension  of 
the  rights  of  the  parties,  or,  as  in  the  case  of  Scott  v.  Rogers,  an  act  of  perfect  good  fsiith,  and 
yet  without  any  actual  loss  to  the  one  party,  the  other  may  be  made  to  suffer  a  penalty  which 
should  only  be  paid  by  a  willful  wrong-doer. 

But  especially  is  the  rule  to  be  deplored  as  a  departure  from  the  principle  of  indemnity,  which 
ought  never  to  be  lost  sight  of  It  is  adopted,  it  is  true,  nominally  as  a  rule  of  indemnity  (see 
opinion  of  Hogeboom,  J.,  in  Scott  v.  Rogers),  but  it  is  contrary  to  the  great  theory  by  which 
damages  to  be  recovered  are  confined  to  such  as  have  been  already  sustained,  such  as  ai'e 
the  natural  and  direct  consequence  of  the  defendant's  act,  or  such  as  both  parties  should 
have  ex]jected  to  ensue,  and  adds  an  unnecessary  exception  to  the  wise  rule  by  which  the 
commencement  of  the  suit  limits  the  rights  of  the  contending  parties.  Direct  profits,  it  is  true, 
are  sometimes  recoverable,  and  in  the  case  of  carriers,  we  have  seen  they  are  sometimes  held 
for  such  gains  as  were  lost  by  the  plaintiff  as  the  direct  result  of  their  fixilure  to  deliver  the 
goods.  But  this  rule  goes  further,  and  embraces  profits  which  are  purely  iincertain  and  specula- 
tive. 

Again,  in  actual  practice,  it  isextremely  rare  that  the  holder  of  stock  or  other  fluctuating 
property  sells  it  at  the  right  moment —  at  the  highest  pinnacle  of  the  market.  The  stockholder 
has  to  deal  with  what  is  future,  what  is  contingent  and  wholly  beyond  his  own  control.  He 
has  all  the  known  circumstances  and  unknown  chances  —  all  the  probabilities  and  possibilities 
near  and  remote,  acting  on  his  fears  and  hopes  as  well  as  on  his  judgment ;  and  as  every  stock 
broker  knows,  for  one  successful  "  hit,"  in  what  are  called  "  speculative  "  stocks,  there  are 
twenty  misses.  To  permit  the  plaintiff  to  look  back  over  a  series  of  years,  or  even  of  months 
(the  length  of  the  time  does  not  affect  the  principle),  and  to  select  deliberately  as  his  indemnity 
the  highest  price  which  a  retrospective  scrutiny  can  detect,  when  in  all  probability  he  could 
never  have  obtained  that  price  as  the  result  of  a  prospective  calculation,  and,  if  he  got  it  at  all, 
would  have  rejoiced  in  his  stroke  of  good  fortune  rather  than  credited  himself  merely  with  the 
fairly  earned  results  of  his  prudence  and  wisdom,  conflicts  with  a  true  rule  of  indemnity,  and, 
as  we  think,  is  unjust.  The  proverb  says,  that  is  a  bad  rule  which  will  not  work  both  ways  — 
a  homely  criticism  which  applies  here.    Where  the  stock  steadily  declines  instead  of  advancing. 


CH.    XIX.]  TIME   FOR    COMPUTING    VALUE.  555 

t 

which  the  other  party  was  apprised,  and  which  he  may  he  thus 
said  to  have  directly  prevented,  the  rights  of  the  parties  are 
fixed  at  the  time  of  the  illegal  act,  he  it  refusal  to  deliver,  or 
actual  conversion,  and  that  the  damages  should  be  estimated  as 
at  that  time.* 

*  I  am  happy  to  find  tliis  lanfjuagc  approved  trover  was  brought  for  an  alleged  conversion 

by  the  Supreme  Court  of  Louisiana,  in  Arrow-  of  cotton.     Sec   also,  Badillo  i;.   Tio,  7   La. 

smith  1-.  Gordon,  3  La.  Ann.  R.  105,  where  au  Ann.  487. 
action  analogous  to  the  common-law  action  of 

the  ihietuating  rule  is  necessarily  abandoned.  In  such  a  case  no  other  than  the  fixed  one  gives 
the  plaintiff  indemnity.  And  it  has  been  very  lately  held  by  the  Court  of  Appeals  in  Virginia, 
in  the  analogous  case  of  the  breach  of  a  contract  to  deliver  stock  where  the  .stock  had  been 
depreciated  .'since  the  breach,  that  the  damages  were  the  value  at  the  time  it  should  have  been 
delivered.     The  Ohio  and  A.  K.  Co.  v.  Fulvey ;  Same  v.  Cowherd,  17  Grat.  (Va.)  366. 

On  the  other  hand,  in  the  rule  in  all  cases,  except  those  proper  for  exemplary  damages,  of 
giving  the  value  of  the  property  with  interest  from  the  time  of  the  conversion,  we  have  one 
which  is  uniform,  definite,  and  wliicli  affords  exact  indemnity.  It  fiiils  not  to  compensate  in 
any  case  for  actual  loss,  but  only'to  make  good  the  non-acquisition  of  possible  profits  —  profits 
often  not  anticipated  by  the  parties,  and  the  temporary  result,  it  may  be,  of  the  operations  and 
combinations  of  speculators,  of  which  they  are  ignorant,  and  which  as  contingent  and  uncer- 
tain, ought  not,  on  principles  already  considered,  to  be  allowed  as  part  of  actual  indemnity.  In 
the  case  of  the  conversion  of  goods  intended  for  a  particular  market,  there  seems  strong  reason 
for  adopting  the  analogy  of  the  case  of  carriers,  which  is  approved  by  Mamn,  J.,  in  the  opinion 
to  which  we  have  referred,  and  taking  as  the  measure  the  net  value  of  the  goods  at  the  place  of 
destination  at -the  time  when  they  should  have  arrived,  with  interest.  (See  Eby  v.  Schumacher, 
29  Penn.  St.  40.) 

If  the  plain  and  definite  rule,  which  we  prefer,  should  in  any  other  case  be  enlarged,  in  our 
view,  that  modification  of  it  laid  down  in  the  case  of  Suydam  v.  Jenkins,  which  conforms  with 
the  English  rule  (p.  475),  and  is  approved  by  the  author  (p.  494),  by  which  damages  beyond 
the  value  of  the  property  and  interest,  are  allowed  only  where  they  are  proved  and  not  merely 
presumed  to  have  been  sustained,  is  the  most  satisfactory  which  has  been  suggested.  See 
Meshke  v.  Van  Doren,  16  Wis.  319  ;  post  550,  note.  We  should  be  disposed  further  to  qualify 
this  enlargement  of  the  rule,  where  it  is  adopted,  by  the  English  practice,  which  regards  such 
damages  as  special,  and  requires  them  to  be  substantially  laid  in  the  declaration  (p.  475).  This 
modification  of  the  general  rule  may  be,  to  some  extent,  liable  to  the  criticism  that  it  opens  a 
collateral  inquiry  as  to  whether  the  plaintiff  did  or  did  not  in  fact  incur  a  loss  beyond  the  value 
of  the  property,  but  it  hardly  goes  beyond  the  range  of  investigation  in  other  cases,  where  by 
the  settled  practice  of  our  courts,  special  damages  are  rightfully  claimed.  In  the  case  of 
Suydam  v.  Jenkins,  however,  an  intermediate  or  third  principle  seems  to  be  recognized,  by 
which  damages  may  be  allowed,  which  are  neither  a  compensation  to  the  wronged  party,  nor 
a  punishment  to  the  wrong-doer,  in  illustration  of  which  is  given  the  case  where  the  wrong- 
doer makes  a  profit  out  of  the  converted  property,  which  he  should  not  be  permitted  to  retain, 
although  the  other  party,  in  receiving  it,  will  obtain  more  than  compensation  for  his  actual 
loss.  We  think,  however,  that  the  principle  of  compensation  will  fairly  cover  all  cases  not 
proper  for  exemplary  damages.  In  that  suggested,  for  instance,  this  principle  demands  that 
the  injured  party  should  be  put  in  the  position  of  the  other  so  far  as  regards  the  question  of 
any  advantage  to  be  derived  from  the  property  in  question  ;  and  the  actual  realization  of  such 
profits,  by  the  trespasser,  defines  them  with  the  certainty  required  in  the  allowance  of  profits. 

There  are  also  cases  in  which  the  time  of  the  conversion  may  admit  of  controversy.  "  In 
the  dissenting  opinion  of  Marvin,  J.  to  which  we  have  referred,  a  qualification  of  the  rule  of 
taking  the  value  at  the  time  of  the  conversion  with  interest  in  these  cases  is  suggested,  growing 
out  of  the  right  of  election,  which  in  cases  of  a  continuing  conversion  the  plaintiff  may  exercise, 
to  fi.K  the  value  of  the  property."  "  As  an  actual  conversion  does  not  change  the  title  of  the 
property,"  says  the  learned  judge,  "  the  plaintiff  may  sometimes  fix,  by  a  demand  of  his  prop- 
erty, tlie  time  of  the  conversion.  If  the  propertj'  remains  in  the  possession  of  the  defendant, 
he  may  demand  it,  and  if  not  delivered,  commence  his  action  the  same  day,  and  regard  that  as 
the  day  of  conversion,  and  in  this  way  recover  the  value  of  the  property  on  the  day  the 
action  was  commenced,  with  interest  thereafter.  And  this,  I  have  no  doubt,  is  so,  though 'there 
was  an  actual  conversion  of  the  property  by  the  defendant,  long  prior  to  the  time  of  the 
demand." 

So,  where  the  conversion  was  not  known  to  the  plaintiff  at  the  time  it  occurred,  it  is  said  by 
the  Supreme  Court  of  Xevada,  in  the  case  of  O'Mcara  v.  The  North  American  Mining  Co. 
(supra),  that  the  time  when  it  became  known  to  the  jilaintiff  may  properly  at  his  election  be 
taken  as  that  for  fixing  the  market  rate  for  which  the  defendant  is  liable. 


556  CONVERSION  OF  PERSONAL  PROPERTY.        [CH.  XIX. 

Cases  of  Pledge.  —  There  are  many  cases,  however,  where 
the  plaintiff,  though  entitled  to  recover,  is  not  at  liberty  to  re- 
ceive the  full  value  of  the  property.^  So  in  cases  of  pledge,  if 
the  pledgee  tortiously  sell  the  pledge  or  otherwise  wrongfully 

put  it  out  of  his  power  to  return  the  article  pledged,  the 
[482]  pledger's  right  of  recovery  is  clear  j  but  the  pledgee  in 

such  action  has  a  right  to  have  the  amount  of  his  debt 
recouped  in  the  damage. 


#2 


*  Bac.  Abr.  Bailment  B. ;  Jarvis  v.  Rogers,  15  Mass.  389  ;  Stearns  v.  Marsh,  4  Denio,  227  ; 
Story  on  Bailments,  2d  ed.  pp.315,  349. 

1  See  Cooper  v.  Newman,  45  N.  H.  339. 

2  From  the  increasing  disposition  to  adjust  all  qiiestions  between  the  same  parties  relating 
to  the  same  cause  of  action  in  one  controversy,  it  has  resulted  in  actions  of  trover  :  first,  that 
where  both  parties  have  <in  interest  in  the  property  itself  as  owners,  the  measure  of  damages  is 
the  loss  which  the  plaintiff  has  sustained  by  having  been  wrongfully  deprived  of  its  possession  ; 
and  second,  that  where  the  defendant  has  such  a  lien  on  the  property  or  other  equitable  interest 
in  it,  as  security  for  a  debt,  as  would  have  rightfully  entitled  him  to  effect  a  sale  of  it  in  case 
of  the  debtor's  default,  the  measure  is  the  I'esiduary  value  of  the  chattel  after  deducting  the 
amount  of  the  debt.  Indeed,  wherever  the  defendant,  although  in  the  wrong  in  assuming  or 
retaining  a  possession  which  rightfully  belongs  to  the  plaintiff,  has  yet  a  legal  or  equitable 
interest  in  the  chattel,  the  action  is  now  treated  on  equitable  principles,  and  the  recovery  limited 
to  the  actual  net  amount  of  the  plaintiffs  claim.  Bait.  Marine  Ins.  Co.  v.  Dalrymjile,  25  Md. 
269. 

Thus  in  Chinery  v.  Viall,  5  H.  &  Norm.  288,  2  L.  T.  R.  (N.  S.)  466,  where  one  having 
bought  sheep  on  credit  left  them  in  custody  of  the  vendor,  and  without  default  of  the  vendee 
the  vendor  resold  them,  it  was  held  by  the  English  Court  of  Exchequer  that  the  measure  was 
not  their  value  but  merely  the  actual  damage  sustained. 

So  it  was  lately  held  by  the  English  Court  of  Common  Pleas,  citing  and  approving  Story  on 
Bailments,  §  315,  and  Jarvis  v.  Rogers,  15  Mass.  389,  that  the  damages  for  the  wrongful  con- 
version of  a  pledge,  are  to  be  measured  by  the  loss  actually  sustained,  taking  into  account  the 
pledgee's  interest  in  the  pledge  at  the  time  of  the  conversion.  Johnson  v.  Stear,  15  C.  B. 
(N.  S.)  330  ;  33  L.  J.  (N.  S.)  C.  P.  130.  In  this  case,  a  bankrupt  had  deposited  certain  dock 
warrants  for  brandy  in  dock  as  security  for  a  loan,  and  it  was  agreed  that  the  pledgee  might 
sell  the  brandy  if  the  loan  were  not  repaid  on  the  29th  of  January  following.  The  pledgee  sold 
the  brandy  on  the  28th,  and  on  the  29th  delivered  the  warrants  to  the  purchaser,  who  took 
possession  of  the  brandy  on  the  30th.  This  was  held  by  all  the  court  to  be  a  conversion, 
although  the  bankrupt  could  not  have  redeemed  the  property.  But  the  majority  of  the  court 
held  that  the  wrongful  acts  of  the  pawnee  did  not  annihilate  the  contract  between  the  parties 
nor  the  interest  of  the  pawner  in  his  goods  under  it.  The  pawnee  had  the  right  to  have  his 
debt  recouped  in  damages.  Mr.  Justice  Williams  dissenting,  held  that  the  bailment  having 
been  terminated  by  the  wrongful  act  of  the  pledgee,  the  property  reverted  to  the  pledger  as  its 
absolute  owner,  and  as  such  absolute  owner  he  was  entitled  to  full  damages.  See  Briggs  v. 
Bost.  and  Lowell  R.  Co.  6  Allen,  246.  But  where"  the  conversion  is  by  an  unlawful  sale  of 
goods  by  one  having  a  lien  on  them,  the  expenses  of  the  sale  cannot  be  allowed  the  defendant. 
Ibid. 

The  principle  of  avoiding  circuity  of  action,  which  we  think  is  the  one  on  Avhich  this  class  of 
decisions  properly  rests,  was  not  in  terms  enlarged  upon  in  the  case  of  Johnson  v.  Stear.  But  it 
has  been  very  clearly  stated  by  the  New  York  Court  of  Appeals.  In  an  action  in  the  nature  of 
trover  by  the  mortgagee  of  chattels  against  the  mortgagor,  that  court  lately  held  that  even  after 
forfeitnre,  to  avoid  circuity  of  action,  the  damages  should  be  limited  to  the  amount  of  the  debt 
secured  by  the  chattel.  For  the  mortgagor,  notwithstanding  the  forfeiture,  would  have  an 
equitable  right  to  redeem  on  payment  of  the  debt,  and  if  on  the  mortgagee's  action  he  should 
recover  the  entire  value,  he  would  be  liable  in  equity  to  the  mortgagor  for  the  surplus,  after  the 
satisfaction  of  the  debt.     Parish  v.  Wheeler,  22  N.  Y,  494. 

And  in  an  action  by  the  mortgagee  of  goods  against  an  officer  who  has  taken  a  part  of  them 
out  of  his  possession  under  an  attachment  against  the  mortgagor,  the  defendant  may  show  in 
mitigation  that  the  mortgagee  has  collected  his  debt  out  of  the  residue.  Ward  v.  Henry,  15 
Wis.  239.     And  see  Saxton  v.  Williams,  16  Wis.  292. 

But  it  must  be  borne  in  mind  that  to  apply  the  rule  of  mitigation  now  Tinder  consideration, 
although  it  be  in  effect  but  an  application  of  the  doctrine  of  recoupment,  the  defendant  must 
have  a  legal  or  equitable  interest  in  or  claim  upon  the  specific  proi^ertyin  question.  Otherwise, 


CH.    XIX.]  SPECIAL   PROPERTY.  557 

Other  Cases  of  SpECLUi  Property.  —  The  value  of  the  goods, 
also,  ceases  to  be  the  measure  of  relief  when  the  plaintiff  brings 
his  action  by  virtue  of  a  special  property,  as  for  instance  a  lien. 
Here  the  measure  of  damages  is  the  lien.  So  *  where  trover  was 
brought  for  fifty  hogsheads  of  tobacco,  the  master  claiming  by 
reason  of  his  lien  on  the  freight  for  advances  and  wages.f  This 
supposes,  however,  that  the  value  of  the  goods  exceeds  the  lien; 
for  if  it  is  otherwise,  still  the  recovery  cannot  go  beyond  that 
value,  and  the  amount  recovered,  therefore,  must  in  such  a  case 
be  less  than  the  plaintiff's  lien. 

Distinction  where  the  Lienor's  Suit  is  against  a  Stranger. 
—  This  is  still  subject,  however,  to  a  further  consideration. 
Where  the  lien  creditor  sues  a  stranger,  the  plaintiff  may  re- 
cover the  full  value  of  the  goods,  holding  the  balance  beyond 
his  own  claim  as  trustee  for  the  general  owner.^  But  where 
the  party  claiming  a  lien  endeavors  to  enforce  it  against  the 

*  IntrersoU  v.  Van  Bokkelin,  7  Cow.  670.        for  his  wages  ;  but  the  right  as  to  his  advances 
t  This  case  was  reversed  in  error,  5  Wend,     was  affirmed  ;   and  the  rule  of  damages  was 
315,  on  the  ground  that  the  master  had  no  lien    not  touched  by  the  reversal. 

in  the  absence  of  any  statute  authorizing  the  determination  of  mutual  claims  in  actions  of  this 
nature,  tlie  plaintiff  will  be  allowed  to  recover  the  full  value,  notwithstanding  any  independent 
demand  of  the  defendant  against  him. 

In  a  late  case  taken  by  appeal  to  -the  English  Court  of  Common  Pleas,  the  defendant  had 
obtained  a  judgment  in  a  county  court  against  the  plaintiff.  At  the  time  of  its  recovery  he  had 
in  his  possession  some  looms  belonging  to  the  plaintiff,  which,  although  having  no  lien  upon 
them,  he  refused  to  give  up  to  the  owner  on  demand,  before  execution,  but  after  the  judgment 
caused  them  to  be  seized  and  sold  under  an  execution  upon  it,  and  applied  the  proceeds  in 
satisfaction  of  the  debt.  It  was  held,  in  an  action  for  the  conversion,  that  the  plaintiff  was 
entitled  to  recover  the  full  value  of  the  goods,  and  that  the  jury  should  not  consider  in  mitiga- 
tion the  application  of  their  proceeds  to  the  judgment.  The  court,  per  Willes,  J.,  said  :  "  Sub- 
sequent to  the  conversion  the  defendant  acquired  a  right  to  the  goods,  but  this  is  a  right  he 
could  not  have  exercised  but  for  a  wrongful  act  of  his  own,  and  it  would  be  against  the  plainest 
principles  to  allow  a  man  to  take  advantage  of  his  own  wrong."  Edmundson  v.  Nuttall,  17  C.  B. 
280  :  34  L.  J.  R.  (N.  S.)  C.  P.  102. 

Again,  where  unredeemed  pledges  deposited  with  the  plaintiff  in  the  way  of  his  trade  as  a 
pawnbroker,  and  which  were  held  under  the  English  law  to  be  protected  from  distress,  had 
been  seized  by  his  landlord  under  a  distress  warrant,  it  was  held  by  the  same  learned  tribunal, 
in  an  action  of  trover  for  the  goods,  that  as  the  defendant  was  an  absolute  wrong-doer,  without 
color  of  right,  the  bailee  was  entitled  to  recover  their  full  value.  Swire  v.  Leach,  18  C.  B. 
(N.  S.)  479. 

So,  again,  where  personal  property  has  been  delivered  under  an  agreement  of  sale  by 
which  the  title  is  not  to  vest  in  the  vendee  till  the  payment  in  full  of  the  purchase-money,  but 
is  sold  or  mortgaged  by  him  to  a  third  party  or  attached  by  his  creditors,  the  general  rule 
remains  umiualitied,  and  the  vendor  is  entitled  to  recover  the  full  value  and  interest  from  the 
time  of  the  conversion,  without  any  deduction  for  payments  made  on  account  by  the  original 
vendee.  Brown  v.  Haynes,  52  Maine,  578 ;  Angler  v.  Taunton  Paper  Manufacturing  Co.  1 
Gray  (Mass.),  621.  See  Pomeroy  v.  Smith,  17  Pick.  (Mass.)  85  ;  Soule  v.  White,  14  Me. 
436. 

^  See  Hayes  v.  Riddle,  1  Sandf  248.  Other  circumstances  may  affect  the  application  of  the 
rule.  And  where  articles  belonging  to  the  plaintiffs  had  come  into  the  defendants'  possession 
eight  years  before  the  action  was  brought,  and  tbe  plaintiffs  had  permitted  the  defendants  to 
use  them  till  a  part  of  them  had  been  rendered  valueless,  the  defendants  could  not  be  charged 
with  their  value  as  for  a  tortious  conversion.  All  the  plaintiffs  were  entitled  to  was  the  value 
of  the  use  for  six  years  before  the  action  was  brought,  and  there  was  no  presumption  of  law 
that  such  value  was  equal  to  that  of  the  articles.  Rider  v.  The  Union  India  Rubber  Co.  4 
Bosw.  (N.  Y.)  169. 


558  CONVERSION  OF  PERSONAL  PROPERTY.       [CII.  XIX. 

true  owner  in  this  form  of  action,  he  can  only  recover  the 
amount  of  his  Hen.*^ 

So  in  Vermont,  where  the  defendant  leased  the  plaintiff  a 
farm  for  a  year,  and  was  to  provide  a  horse  to  use  on  the  farm 
during  the  term.  He  furnished  one,  but  took  him  away  and 
sold  him.  It  was  held  that  the  plaintiff  acquired  a  special  prop- 
erty in  the  horse,  and  in  an  action  of  trover  could  recover 
damages  for  the  use  of  him  during  the  residue  of  the  term.f  ^ 

In  New  York,  where  a  3onstable  having  levied  on  certain 
goods  by  virtue  of  executions,  on  which  $81.30  was  due, 
brought  trover  for  them,  and  recovered  their  full  value,  $108, 
it  was  held  on  a  motion  for  a  new  trial  that  he  could  only  re- 
cover to  the  amount  of  the  executions,  and  the  verdict  was  re- 
duced to  that  sum.t  This  case  may  appear  to  conflict  with  the 
rule  above  laid  dowm ;  but  the  defendants  were  purchas- 
[483]  ers  of  the  property,  and  if  the  plaintiff  had  recovered  the 
full  value,  he  must  have  held  the  balance  beyond  his  ex- 
ecution for  their  benefit.  It  was  an  action  against  the  general 
owner,  and  not  against  a  stranger.§  So  where  the  plaintiff  had 
been  endeavoring  to  baffle  his  creditors  by  an  ostensible  trans- 
fer of  the  property  sued  for,  it  was  left  to  the  jury  to  find  a  ver- 
dict for  the  plaintiff's  real  and  bond  fide  interest;  and  though 
the  goods  were  worth  £21,  the  verdict  was  for  one  fourth  of  a 
penny.ll  ^ 

*  See  Jarvis  v.  Rogers,  15  Mass.  389,  where  under  a  claim  of  right,  and  the  real  dispute 

the  rule  of  damages  in  cases  of  lien  was  much  is  as  to  the  title,  the  rule  of  damages  is  the 

discussed ;  and  also  Lyle  v.  Barker,  5  Binney,  value  of  the  property  at  the  time  of  the  con- 

457-60.  version  or  taking,  and  interest  on  that  sum  to 

t  Hickok  I'.  Buck,  22  Verm.  149.  the  time  of  judgment.     If,  however,  the  suit 

X  Spoor  V.  Holland,  8  Wend.  445.  is  brought  by  a  bailee  or  special- property  man 

§  So  in  Connecticut,  in  an  action  of  trover  against  the  general  owner,  then  the  plaintift 

brought  by   a   second   mortgagee   against    a  can  recover  the  value  of  his  special  property 

stranger,  it  was  insisted  that  the  plaintiff  could  only;    but  if  the  suit  is  against  a  stranger, 

only  recover  the  value  of  his  interest,  i.  e.  its  then   he   recovers    the  value  of   the  property 

value  after  deducting  the  amount  due  on  the  and  interest   according  to   the   general   rule, 

prior  mortgage;    but  it  was  held  otherwise,  and  holds  the  balance  beyond  his  own  inter- 

and  the  court  said,  "  In  actions  of  trover  and  est  in  trust  for  the  general  owner."     White  v. 

trespass  for  property  taken  and  converted  by  Webb,  15  Conn.  502. 

the   defendant,  where   there   is   no   malicious         ||  Cameron  v.  Wynch,  2  Car.  &  Kir.  264. 
motive  on  his  part,  but  he  takes  the  property 


1  Ullman  y.  Barnard,  7  Gray,  554  ;  Cram  v.  Bailey,  10  Gray,  87.  And  the  rule  here  stated 
in  reference  to  suits  by  a  lienor  against  the  owner,  applies  equally  to  such  a  suit  against  one 
claiming  under  the  true  owner.     Chadwick  v.  Lamb,  29  Barb.  518. 

If  the  goods  converted  are  of  less  value  than  the  amount  of  the  lien,  no  more  can  be 
recovered  than  their  value.     Davidson  v.  Gunsolly,  1  Mich.  388. 

'■^  During  the  existence  of  slavery  in  this  country  the  same  principle  of  damages  was 
adopted  where  the  owner  of  a  slave  had  hired  him  out,  and  afterwards  wrongfully  retaken 
him.  Campton  v.  Martin,  5  Rich.  (S.  C.)  L.  14  ;  Horton  v.  Reynolds,  8  Tex.  284;  Calvit  v. 
Cloud,  14  Ibid.  53.  But  see  Blakely  v.  Duncan,  4  Ibid.  184  ;  Haughton  v.  Beabury,  2  Jones 
(N.  C.)  E.  337. 

"  And  where  a  sheriff  had  levied  on  certain  articles  as  the  property  of  a  judgment  debtor, 
and  replevin  having  been  brought  against  the  sheriff  for  the  articles  by  a  third  party  claiming 


en.   XTX.]  CONFUSION.  559 

Confusion.  —  The  action  of  trover,  as  well  as  that  of  trespass, 
often  presents  interesting  qnestions  connected  with  what  is 
technically  termed  confusion.*  "If,"  says  Blackstone,t  "one 
willfully  intermixes  his  money,  corn,  or  hay,  with  that  of  another 
man,  without  his  approbation  or  knowledge,  or  casts  gold  in 
like  manner  into  another's  melting  pot  or  crucible,  our  law  to 
guard  against  fraud  allows  no  remedy  in  such  a  case,  but  gives 
the  entire  property,  without  any  account,  to  him  whose  original 
dominion  is  invaded  and  endeavored  to  be  rendered  uncertain 
without  his  own  consent."^  The  same  principle  has  been  ap- 
plied to  cases  where  subsequent  to  the  illegal  taking  or  conver- 
sion the  defendant  increases  the  value  of  the  property  by  be- 
stowing his  labor  in  any  way  on  it.  It  seems  to  be  well  settled, 
that,  as  a  general  rule,  personal  property  illegally  or  tortiously 
held,  can  be  retaken  by  the  rightful  owner  in  any  new  form 
into  which  it  may  be  put  by  the  labor  of  the  defendant, 
without  reference  to  the  increase  of  value  by  such  change  [484] 
of  form.  Thus,  cloth  made  into  garments,  leather  into 
shoes,  trees  hewn  or  sawed  into  timber,  and  iron  made  into  bars, 
may  be  reclaimed  by  the  original  owner,  in  their  new  and  im- 
proved state.  The  increased  value  belongs  to  the  rightful 
owner  of  the  property.  The  action  of  trover  does  not,  it  is  true, 
recover  the  specific  property.  But  the  same  principle  has  been 
applied  to  this  form  of  action,  and  the  value  of  the  property  in 
its  new  and  improved  state  thus  becomes  the  measure  of  dam- 
ages.^    Nor  is  the  rule  departed  from,  unless  the  thing  con- 

*  Confusion,  Lat.  Confusio.    Confundi  dici-  of  different  interests,  and  in   this   sense   the 

ster,  quod  aliis  ita  conimiscctur  ut  dcduci  et  se  analofrous  word  is  used  in   the  French  law. 

parari  non  possit,  aut  certe  difficillis  sit  ejus  Crivelli,  in  voc. 
separatio.     Vicat.  Vocab.  Utriusque  Juris  iti        t  Conim.  2,  ch.  26. 
voc.     The  term  is  applied  also  to  the  merger 

to  own  them,  they  were  delivered  to  such  party  in  the  action,  the  court  properly  refused  to 
instruct  tiie  jury,  if  they  found  for  the  defendant,  to  limit  their  verdict  to  the  amount  of  the 
execution  on  wliich  the  projierty  had  been  taken.     Buck  v.  Remsen,  34  N.  Y.  383. 

i  Sec  Stephenson  v.  Little,  10  Mich.  433.  If,  however,  the  mixture  be  accidental  or  not 
wrongfully  made,  each  party  will  be  entitled  to  his  own  property  or  to  its  value,  provided  the 
separation  can  be  made,  or  the  values  be  apportionable.  If  by  the  intermixture  the  property 
be  destroyed,  the  loss  falls  on  him  whose  fault  occasioned  the  destruction.  2  Black,  ch.  26 ; 
Ryder  y. "Hathaway,  21  Pick.  (Mass.)  296. 

•^  Rice  V.  HoUenbeck,  19  Barb.  664 ;  Walter  v.  Wetmore,  1  E.  D.  S.  7.  But  see  Forsyth  v. 
Wells,  41  Penn.  291,  cited  ;uo.s<,  495,  note,  where  the  Supreme  Court  of  Pennsylvania,  revers- 
ing the  judgment  of  the  Court  of  Common  Pleas,  held  that  the  plaintiff  suing  in  trover  to 
recover  the  value  of  coal  dug  out  of  his  bed  by  mistake,  could  recover  only  the  value  of  the 
coal  before  it  was  mined.  So  in  trover  for  petroleum,  where  the  action  can  be  maintained,  the 
measure  of  damages  is  its  value  at  the  instant  of  its  separation  from  the  freehold,  exclusive  of 
the  labor  of  obtaining  it.     Kier  v.  Peterson,  41  Penn.  St.  357. 

There  is  some  uncertainty  in  the  rule  of  damages  recoverable  for  the  destruction  of  trees. 
In  Maine,  in  an  action  of  trover  for  the  conversion  of  timber,  where  the  defendant's  possession 
has  been  uninterrupted,  the  measure  of  damages  is  its  value  when  first  separated  from  the  free- 
hold.    Moody  V.  Whitney,  38  Me.  174. 

In  California,  however,  it  was  held,  in  an  action  for  cutting  down  trees  growing  on  the 


5G0  CONVERSION    OF   PERSONAL   PROPERTY.  [CH.    XIX. 

verted  has  been  annexed  to  and  made  a  part  of  some  other 
thing,  of  which  it  becomes  the  principal,  or  its  nature  is  changed 
from  personal  into  real  property.* 

J'his  principle  was  adhered  to  in  New  York,  in  an  action  of 
trespass,!  where  timber  had  been  converted  into  shingles.  And 
again  in  an  action  of  trover,^  brought  for  wood  converted  into 
coals ;  the  court  there  saying,  "  a  zvillful  trespasser  cannot  acquire 
a  title  to  property,  merely  by  changing  it  from  one  species  to 
another."  And  again  in  an  action  of  trover,§  where  black  salts 
were  converted  into  pearl  ashes. 

The  doctrine  has,  however,  been  much  questioned  in  the  same 
State,||  where  certain  logs  had  been  cut  on  the  plaintiff's  land, 
drawn  to  the  defendant's  mill,  and  converted  into  boards  (the 
value  of  the  logs  being  $187.56,  of  the  boards  $309.46,  and  the 
difference  $125.90) ;  and  the  judge  charged  that  the  measure 
of  damages  would  be  the  value  of  the  boards  without  reference 
to  the  price  of  the  defendant's  labor,  and  the  jury  gave  $309.46. 
It  was  insisted,  on  a  motion  for  a  new  trial,  that  in  trover,  where 
the  conversion  was  the  gist  of  the  action,  and  the  character  of 
the  original  taking  not  inquired  mto,  the  damages  should  be 
confined  to  the  value  of  the  thing  as  taken,  or  the  value  of  the 
defendant's  labor  deducted ;  and  that  even  if  the  rule  laid  down 
at  the  trial  were  sound  in  trespass,  it  could  not  apply 
[485]  here,  because  the  plaintiff  had  elected  to  bring  trover. 
The  court  held  otherwise,  on  the  authority  of  the  previous 
cases.  But  Sutherland,  J.,  dissented.  He  admitted  that  where 
the  taking  was  willful  and  tortious,  this  rule  would  not  be  oppres- 
sive or  unjust.  But  that  as  the  mode  of  taking  could  not,  in 
trover,  be  inquired  into,  no  such  general  rule  could  be  laid  down. 
He  put  the  case  of  jewels  lodged  with  a  banker  for  safe  custody, 
and  pawned  by  him,  and  set  at  great  expense  by  the  pawnee ; 
could  the  rightful  owner  in  trover  against  the  pawnee  obtain  the 
jewels  as  set,  without  deduction  for  the  labor  of  setting  ?     The 

*  This  seems  the  doctrine  since  the  Year  pi.  5.    Silsbury  v.  M'Coon,  6  Hill,  425  ;  4  De- 
Books.     Si  home  prist  arbres  and  puis  il  fait  nio,  332. 
boards  de  eux,  uncore  le  owner  poit  eux  re-        t  Betts  v.  Lee,  5  J.  R.  348. 
prender,  qina  major  pars  substantias  remanet.         %  Curtis  v.  Groat,  6  J.  R.  168. 
F.  Moore,  Rep.  20  pi.  675  ;  5   Hen.  VII.  15  ;         §  Babcock  v.  Gill,  10  J.  R.  287. 
12  Hen.  VIII.  10;  Viner  Abr.  Property  (E.)         1|  Brown  v.  Sax,  7  Cowen,  95. 


plaintiff's  land,  that  the  measure  of  damages  was  not  the  value  of  the  trees  as  fire-wood,  etc., 
but  the  injury  done  to  the  land  by  their  destruction.  Chipman  v.  Hibberd,  6  Cal.  162.  In 
general,  the  proper  rule  is  the  value  of  the  trees  as  they  stood  on  the  land  before  the  trespass. 
Whitbeck  v.  N.  Y.  Cent.  R.  R.  Co.  35  Barb.  644.  But  in  trespass,  damages  for  the  whole 
injury  measured  by  the  diminution  in  the  value  of  the  land,  togetlier  with  the  value  of  the 
trees  as  they  stood,  it  seems  may  be  recovered.  This  would  certainly  be  the  rule  where  there 
is  no  embarrassment  from  the  different  forms  of  action.     See  ante,  134,  136,  a.nd.post,  537,  538. 


CH.    XIX.]  TORTIOUS   TAKING.  561 

question  is  very  pertinent,  and  difficult  of  reply,  on  the  autliori- 
ties.     But  a  new  trial  was  denied. 

Tortious  Taking. — The  same  point  was  again  decided  in  the 
same  State,*  in  an  action  of  trover  for  logs  converted  into  boards. 
But  it  is  to  be  remarked  that  in  both  these  cases  the  court  no- 
ticed the  fact  that  there  was  undoubtedly  a  tortious  taking  by 
the  defendant.  How  the  question  would  be  disposed  of  in  a 
case  where  the  taking  appeared  to  be  bond  fide,  and  how  the 
principle  could  be  got  over,  that  in  trover  the  taking  is  only 
inducement  not  to  be  traversed,  and  the  conversion  the  gist  of 
the  action,  remains  yet  to  be  decided.!  ^ 

It  is  expressly  said  in  the  old  books,  tliat  no  allow^ance  can  be 
made  in  trover  for  the  tortious  taking.t  Thus,  "  if  the  goods 
of  I.  S.  have  been  tak^en  by  I.  N.,  in  such  a  tortious  manner  that 
an  action  of  trespass  would  lie,  an  action  of  trover  will  hkewise 
lie;  but  I.  S.  can  only  recover  in  the  latter  action  damages  for 
the  conversion  of  the  goods,  inasmuch  as  he  does,  by  electmg  to 
bring  an  action  of  trover,  waive  his  right  to  recover  damages  for 
the  tortious  taking."  Although  Lord  Mansfield,  as  we  have 
above  seen,  in  Fisher  v.  Prince,  intimated  a  contrary  opinion. 
The  question,  it  will  be  seen,  is  very  material.  It  is  not  whether 
the  plamtifif  has  or  has  not  a  right  to  follow  his  property  in  its 
altered  state ;  but  whether  having  waived  a  form  of 
action  which  enables  him  to  prove  malice,  he  shall,  in  [486] 
this  proceeding,  prevent  the  defendant  from  setting  off 
or  recouping  expenses  which  he  has  laid  out  hond  fide  on  the 
property,  and  which  have  actually  enhanced  its  value.^ 

Rule  of  the  Civil  Law.  —  The  civil  law  does  not  in  any  case 
appear  to  recognize  the  severe  rule  of  our  system :  Quod  si 
frumentum  Titii  frumento  tuo  mistum  fuerit,  siquidem  voluntate 

*  Baker  v.  Wheeler,  8  Wend.  505.  raised.      They  agreed  that  the  plaintifi'  was 

A  In  Pierce  v.  Schenck,  3  Hill,  28,  trover  entitled  to  recover  the  value  of  all  the  logs. 

for  logs  partially  converted  into  boards,  Nel-  See  this  case  commented  on   in    Gregory   v. 

son,  C.  J.,  and  Bronson,  J.,  said,  the  question  Stiyker,  2  Denio,  628. 

whether  the  plaintitF  could  recover  as  dam-  \  Bacon  Abr.  Trover,  A.  3. 

ages  the  value  of  the  boards,  was  not  distinctly 

1  See  Hyde  v.  Cookson  (21  Barb.  92),  where  the  additions  to  the  value  having  been  made 
under  a  contract  with  the  o^mier,  it  was  held  that  the  value  of  the  additions  should  be  allowed 
to  the  defendants. 

2  In  Pennsylvania,  it  is  settled  that  the  alleged  malice  and  willfulness  of  the  taking  may  be 
inquired  into,  and  where  they  are  found,  additional  compensation  may  be  allowed  in  this  form 
of  action.  Forsyth  y.  Wells,  41  Penn.  291  (joosf,  495,  note).  See  also,  Backenstoss  f.  Stahler's 
Adm'rs,  33  Penn.  St.  251. 

So  in  Indiana,  in  the  case  of  Pribblc  v.  Kent,  10  Ind.  325,  the  court,  after  saying  that  the 
value  of  the  article,  which  was  corn,  "  would  seem  to  be  the  natural  measure  of  damages," 
add,  "  Perhaps  circumstances  might  justify  the  infliction  of  more." 
36 


562  CONVERSION    OF   PERSONiiL    PROPERTY.  [CH.    XIX. 

vestra,  commune  est,  quia  singula  corpora,  id  est,  singula  grana, 
quae  cuj  usque  propria  fuerint,  consensu  vestro  communicata  sunt. 
Quod  si  casu  id  mistum  fuerit,  vel  Titius  id  miscuerit  sine  tua 
voluntate,  non  videtur  commune  esse,  quia  singula  corpora  in 
sua  substantia  durant.  Sed  nee  magis,  istis  casibus,  commune 
sit  frumentum  quam  grex  intelligitur  esse  communis,  si  pecora 
Titii  tuis  pecoribus  mista  fuerint  *  Nor  should  the  analogous 
case  in  regard  to  real  property  be  overlooked.  In  trespass  for 
mesne  profits,  the  bond  fide  occupant  of  lands  without  notice, 
v^ho  has  improved  them,  is  allowed  to  set  off  or  recoup  the  value 
of  his  improvements.  And  such,  as  we  shall  see,  is  equally  the 
case  in  regard  to  personal  property  when  trespass  is  brought. 
Why  should  not  the  same  equity  be  extended  to  the  action  of 
trover  ?  I  apprehend  that  whenever  the  question  is  distinctly 
presented,  the  milder  rule  will  be  maintained.  Indeed,  it  has 
been  so  intimated  in  England. 

Defendants'  Lien.  —  Where  goods  were  sent  to  a  dyer,t  who 
dyed  them,  and  then  insisted  on  a  right  to  retain  them,  not  only 
for  the  charges  on  them,  but  for  a  debt  due  for  dyeing  other 
goods,  the  Court  of  King's  Bench  held  that  he  had  no  lien  but 
for  the  price  of  dyeing  the  particular  goods,  and  the  plaintiff 
recovered ;  but  the  report  adds,  "  The  price  of  dyeing  was  de- 
ducted at  the  time  of  taking  the  verdict,  the  value  of  the  goods 
in  white  being  only  thereby  given  to  the  plaintiff." 

And  the  principle  of  this  decision  has  been  followed  in  Massa- 
chusetts, in  a  case  where  the  plaintiffs  made  a  conditional 
[487]  sale  of  brown  cotton  goods  to  a  printing  company,  who, 
after  printing  them,  transferred  them  to  the  defendant, 
but  did  not  comply  with  the  conditions ;  and  it  was  held  that 
the  plaintiffs  could  recover  in  trover,  but  the  court  was  of  opin- 
ion "  that  the  plaintiffs  were  not  entitled  to  recover  the  full  value 
of  the  good^  in  the  printed  state.  The  value  of  them  in  their 
brown  state  appears  to  us  a  more  just  and  equitable  measure  of 
damages,  under  all  the  circumstances  of  the  case4 

*  Inst.  lib.  ii.  tit.  i.  §  28.  A  different  rule  defendant  had  taken  the  plain tiif's  logs,  and 
necessarily  prevailed  where  separation  was  im-  mantifactured  them  into  boards,  and  inter- 
possible.  Sed  et  it  quod  in  chart4  meft  scribi-  mixed  these  boards  with  a  pile  of  his  own,  so 
tur  aut  in  tabula  pinxitur,  statim  meum  fit ;  that  they  could  not  be  distingixished,  with  the 
licet  de  picture  quidam  contra  senserint  prop-  fraudulent  intent  of  depriving  the  plaintiff  of 
ter  pretium  pictura; ;  sed  necesse  est  ei  rei  cedi  his  property.  And  it  was  held  that  the  owner 
quod  sine  ilia  esse  non  potest.  Dig.  lib.  vi.  of  the  logs  might  maintain  replevin  for  the 
De  Ilei  Vindi,  p.  23,  §  3.  whole  pile.    Wingate  v.  Smith,  20  Maine,  287. 

t  Green  v.  Parmer,  4  Burr.  2214.  The  question  as  to  the  propriety  of  making 

I  Dresser  Manufacturing  Company  v.  Wa-  allowance   for  the  labor  of   the  defendant  in 

terston,  3  Met.  9.  such   cases  was  considered   by  the    Superior 

In  Maine,   this    doctrine  of  confusion   of  Court  of  Connecticut,  in  Benjamin  r.  Benja- 

goods  has  been  appHed  to  a  case  where  the  min,  15  Conn.  347,  whei-e  grass  had  been  con- 


CH.    XIX.]  CIIOSES    IN   ACTION.  5G3 

And  in  the  same  State,  it  has  been  said  generally,  that "  where 
the  plaintiff  admits  that  the  defendant  has  a  lien  on  the  prop- 
erty to  a  certain  amount,  that  amount  may  be  deducted  l)y  the 
jury  in  assessing  damages."  *  In  this  case  the  plaintiff  h;id  ad- 
mitted the  defendant's  lien  by  tendering  its  amount.f 

In  Alabauia,  where  wood  had  been  converted  and  made  into 
coal  by  the  defendant,  the  owner  was  held  entitled  to  bring 
trover  for  the  coal.  As  to  the  question  we  are  now  consider- 
ing, it  w\as  said,  "It  is  possible  the  jury  might  consider  the 
value  of  the  defendant's  labor  on  the  rough  material;"  but  as 
this  point  had  not  been  presented,  it  was  not  decided. | 

Partnership  Property.  —  Where  the  property  is  owned  by 
partners,  and  one  partner  sues,  he  is  entitled  to  the  value  of  his 
share  without  reference  to  the  state  of  matters  between  him 
and  his  co-partner.  So  where  on  an  execution  against  one  of 
two  partners,  the  sheriff  illegally  sold  the  interest  of  both,  he 
was  held  liable  in  trover,  and  the  measure  of  damages  was  held 
to  be  the  value  of  the  property  converted,  irrespective  of 
the  question  whether  the  partnership  was  or  was  not  sol-  [488] 
vent,  and  without  regard  to  the  state  of  the  partnership 
accounts.§ 

Securities  for  Money.  —  Where  the  property  sued  for  in  tro- 
ver is  a  chose  in  action,  as  a  bill,  note,  bond,  or  other  security 
for  the  payment  of  money,  it  seems  that  the  measure  of  dam- 
ages is  prima  facie  the  amount  due  on  the  security,  the  defend- 
ant being  at  liberty  to  reduce  that  valuation  by  evidence  show- 
ing payment,  the  insolvency  of  the  maker,  or  any  fact  tending 
to  invalidate  the  security.||  ^ 

verted  into  hay,  but  without  arriving  at  any        §  Walsh  v.  Adams,  3  Denio,  125. 
conclusion  ;  the  court  thinking,  on  the  partic-         ||  Evans  v.   Kymer,  1  Barn.  &  Adol.  528. 

nlar  facts  of  the  case,  that  no  such  allowance  In  this  case  it  is  said  that  the  ancient  form  of 

should  be  made.  proceeding  in  these  cases  was  to  bring  detinue 

Tlie  original  rule  in  England  has  been  re-  to    recover   the   specific    chattel,   whereas   in 

cently   said   (obiter,  however)  still  to  hold  in  trover  damages  only  are   recovered.      See  in 

trover.    Martin  y.  Porter,  5  Mees.  &  Wels.  351.  Louisiana,  New  Orleans  Draining  Co.  w.  De 

But  see,  contra.  Wood  v.  Morewood,  3  Q.  B.  Lezardi,  2  La.  Ann.  R.  281,  a  suit  for  State 

R.  440,  in  notes  ;  and  posl.  and  city  bonds.     In  Tennessee,  damages  may 

*  Fowler  v.  Gilman,  13  Met.  267.  be  recovered  in  trover  for  the  unlawful  deten- 

t  See  also,  Chamberlin  v.  Shaw,  IS  Pick,  tion  of  a  note,  and  the  note  itself  may  lie  re- 

283.  covered  in   detinue.      Seals  y.  Cummiugs,  8 

X  Riddle  v.  Driver,  12  Ala.  590.  Humphreys,  442. 

1  Decker  v.  Mathews,  12  N.  Y.  313,  affirming  5  Sandf.  439  ;  Bredow  v.  Mutual  Savings  In- 
stitution, 28  Mo.  (Jones)  181  ;  Potter  v.  Merchants'  Bank,  28  N.  Y.  641  ;  Latham  v.  Brown, 
16  Iowa,  118  ;  Nininger  v.  Banning,  7  Minn.  274  ;  O'Donoghue  v.  Corby,  22  Mo.  393  ;  Men- 
kens V.  Menkens,  23  Ibid.  252.  The  same  rule  is  applied  in  an  action  against  a  common  car- 
rier for  the  loss  of  a  draft.  Zeigler  v.  Wells,  Fargo  &  Co.  23  Cal.  179.  But  although  in  an 
action  for  the  wrongful  conversion  of  a  promissory  note,  the  recovery  may  be  reduced  below 


564  CONVERSION  OF  PERSONAL  PROPERTY.       [CH.  XIX. 

Lord  Ellenboroiigh  held,  as  we  have  seen,*  that  the  damages 
in  actions  for  bills  of  exchange  were  to  be  estimated  at  the 
amount  of  the  principal  and  interest  due  on  the  bills  at  the  time 
of  the  demand  and  the  refusal ;  in  other  words,  at  the  time  of 
conversion.  No  doubt  seems  to  have  been  entertained  that  the 
face  of  the  bills  was  the  prima  facie  measure  of  damages  ;  and 
the  same  point  was  ruled  in  New  York,  with  no  limitation,  how- 
ever, as  to  the  time  to  which  interest  was  to  be  computed.! 

Where  %  trover  was  brought  to  recover  a  bill  of  exchange  for 
£1,600,  which  the  bankrupt  had  deposited  with  the  defendant, 
and  on  which,  after  a  demand  had  been  made  for  it  and  refused, 
he  had  raised  the  sum  of  £800,  it  was  insisted  that  the  damages 
should  be  only  this  latter  sum ;  but  it  was  held  otherwise  at  the 
trial ;  and  upon  argument  for  a  new  trial,  Lord  Abinger,  C.  B., 
said,  "  If  the  defendant  will  bring  £800  into  court  and  deliver 
up  the  bill,  the  verdict  may  be  entered  for  a  nominal  sum ;  but 
he  converted  the  whole  bill,  and  the  plaintiffs  are  entitled 
[489]  to  recover  the  value  of  the  whole  at  the  time  of  the  con- 
version. The  defendant  cannot  be  less  liable,  for  having 
destroyed  the  property  to  the  amount  of  one  half."  ^ 

In  an  action  of  trover  for  certain  Hllettes^  being  Peruvian 
paper  money,  it  appeared  that  the  billettes  were  at  a  great  dis- 
count ;  but  the  matter  being  referred  to  the  prothonotary  for 
adjustment,  the  plaintiffs  insisted,  on  af&davit,  that  the  billettes 
were  worth  to  them  the  value  expressed  on  their  face,  and  claimed 
a  recovery  to  that  amount.  And  the  court  allowed  it.  This, 
however,  hardly  seems  in  analogy  to  other  cases ;  for  the  gen- 
eral rule  which  we  have  laid  down  is  to  be  taken  with  the  quali- 
fication, that  the  note,  or  other  chose  in  action,  is  still  an  avail- 
security  for  the  amount  claimed. 

*  Ante,  478  ;  Mercer  v.  Jones,  3  Camp.  476  ered  the  question  how  far  the  character  of  the 
(1813).  taking  can  come  into   consideration   in  this 
t  Ingalls  V.  Lord,  1  Cowen,  240.  form   of  action.     But  the  judgment  was  re- 
It  should,  perhaps,  be  noticed,  that,  in  this  versed  by  the  plaintiff,  on  error,  for  the  small- 
case,  the  defendant  was  a  constable,  who  had  ness  of  the  damages. 

illegally  levied  on  the  note  in  question  ;  and  |  Alsager,  Assignee,  v.  Close,  10  Mees.  & 

the  court  said,  "that  it  viewed  with  great  jeal-  Wels.  576. 

ousy  the  conduct  of  officers  holding  executions  §  Delegal  v.  Naylor,  7  Bing.  460. 
against  defendants."     I  have  already  consid- 

the  amount  of  the  note  and  interest,  which  is  the  prima,  fa/iie  measure,  by  proof  of  the  maker's 
insolvency,  yet  if  fi'om  special  circumstances  the  note  was  a\5ailal)Ie  to  the  plaintiff"  to  its  fiill 
amount,  that  amount  will  remain  the  measure  of  damages.  Rose  v.  Lewis,  10  Mich.  483.  See 
also,  Farrel  v.  Colwell,  1  Vroom  (N.  J.),  123,  wliere,  in  trespass  for  selling  the  plaintiff's  horse, 
the  measure  was  what  he  was  worth  to  the  plaintiff  in  his  business ;  though  in  this  case  we 
venture  to  doubt  the  propriety  of  the  modification  of  the  general  rule.  See  also,  Williams  v. 
Phelps,  16  Wis.  80.  So,  where  an  officer  had  wrongfully  taken  from  the  plaintiff  a  promissory 
note,  the  maker  of  which  was  then  solvent,  but  who  became  insolvent  before  the  officer  offered 
to  return  it,  the  measure  of  damages  was  held  to  be  the  value  of  the  note  at  the  time  of  the 
conversion  and  interest.  King  v.  Ham,  6  Allen,  298. 
1  See  Kobbins  v.  Packard,  31  Vt.  (2  Shaw)  570. 


CH.    XIX.]  CHOSES    IN   ACTION.  565 

Where  *  trover  was  brought  for  a  £300  check,  drawn  by  the 
bankrupt  on  his  bankers,  and  deUvered  after  his  bankruptcy  to 
the  defendant,  a  creditor,  and  paid  by  the  drawees,  the  jury 
found  a  verdict  for  the  face  of  the  bill.  On  a  motion  to  set  aside 
the  verdict  and  enter  a  nonsuit,  Chambre,  J.,  said,  "  How  can 
you  sue  for  a  piece  of  paper  of  no  value  ?  "  and  Mansfield,  C.  J.^ 
said,  "  The  plaintiffs  proceed  on  the  ground  that  the  check  is 
worth  nothing,  being  drawn  without  authority ;  how  can  they 
recover  on  it  the  sum  of  three  hundred  pounds?"  and  a  nonsuit 
was  entered.^ 

Other  Securities  and  Written  Instruments. — The  principle 
of  these  cases  has  been  applied  to  securities  of  other  description, 
as  leases,  and  bonds  not  conditioned  for  the  payment  of  money. 
Where  the  defendant  f  agreed  to  purchase  of  the  plaintiff  for 
£73  19s.  the  unexpired  term  of  a  lease  of  twenty  years,  and 
the  plaintiff  delivered  to  him  the  indenture  of  lease  for  the  pur- 
pose of  having  an  assignment  made  out,  the  defendant  subse- 
quently made  an  agreement  with  the  original  landlord,  and 
broke  off  the  bargain  with  the  plaintiff,  and  declined  to  accept 
an  assignment.  The  plaintiff  demanded  the  lease  (but  not  the 
purchase-money),  which  being  refused,  he  brought  trover.  The 
jury  found  a  verdict  for  £73  19^.,  the  price  agreed  on  as  the 
value  of  the  lease,  deducting  the  amount  of  some  fixtures  which 
the  plaintiff's  under-tenant  had  removed,  and  no  question 
was  made  but  the  measure  of  damages  was  correct.  So,  [490] 
where  t  the  defendant  had  executed  a  bond  to  one  H. 

*  Matthew  and  Cousins,  Assignees  of  Moore,        t  Parry  v.  Frame,  2  Bos.  &  Pull.  451. 
V.  Slierwell,  2  Taunton,  439.  J  Clowes  v.  Hawley,  12  J.  R.  484. 

1  The  rule  of  damages  in  trover  for  title-deeds  has  not  been  much  discussed  in  the  reports. 
Regai'ding  the  vahxe  of  the  deed  as  the  consideration  expressed  in  it,  or  the  value  of  the  land 
conveyed  by  it,  there  can  be  little  doubt  that  in  this  country  the  ordinary  rule  of  damages  in 
trover  would  not  apply,  both  because  the  judgment  would  not,  as  in  actions  for  the  conversion 
of  goods,  etfect  a  transfer  of  the  title  to  the  defendant,  and  because  the  title  of  the  plaintiff  if 
recorded,  as  is  generally  the  case,  would  be  unaffected  by  the  conversion,  and  if  not  recorded, 
the  deed  would  still  be  unavailable  to  the  defendant,  and  the  plaintiff  can  usually  have  redress 
in  equity.  "No  case  can  be  found,  I  think,"  says  Dixon,  C.  J.,  in  delivering  the  opinion  of 
the  Supreme  Court  of  Wisconsin,  "  where  the  recovery  and  satisfaction  of  a  judgment  for  the 
conversion  of  them  (title-deeds)  have  been  adjudged  to  pass  the  legal  title."  "I  should  think 
that  in  those  cases  where  the  title  is  unaffected,  and  the  conduct  of  the  defendant  has  not  been 
fraudulent  or  oppressive,  but  where  the  deed  or  other  written  instrument  was  lost  or  de- 
stroyed through  his  mistake,  negligence,  or  slight  omission,  the  more  just  rule  of  damages 
would  be  such  sum  as  would  recompense  the  defendant  for  any  actual  loss  he  may  have  sus- 
tained, and  for  his  trouble  and  expenses  in  going  into  a  com't  of  equity  or  elsewhere  to  estab- 
lish and  perpetuate  the  evidence  of  his  title,  with  the  costs  of  the  action."  Mowry  v.  Wood, 
12  Wis.  413. 

And  in  England,  where  the  ])laintiff  had  already  recovered  possession  of  the  land  from 
the  defendant  in  ejectment,  the  court,  after  a  recovery  of  £2,500  in  an  action  of  trover  for 
the  title-deeds,  permitted  satisfaction  of  the  damages  to  be  entered  on  the  roll  on  delivering 
up  the  deeds,  and  paying  costs  as  between  attorney  and  client,  and  othen\'ise  placing  the 
plaintiff  in  as  good  a  situation  as  before  the  cause  of  action.  Coombe  v.  Samson,  1  D.  &  R. 
201. 


666  CONVERSION  OF  PERSONAL  PROPERTY.       [CH.  XIX. 

Clowes,  which  was  assigned  to  the  plaintiff,  in  the  penalty  of 
f  1,000,  conditioned  to  convey  a  lot  of  land.  Trover  was  brought 
for  this  instrument,  and  the  conversion  proved.  The  plaintiff 
having  been  nonsuited  at  the  trial,  on  the  ground  that  none  but 
nominal  damages  could  be  given,  the  court  set  the  nonsuit  aside, 
saying  that  the  plaintiff,  as  the  assignee  of  the  obligee,  having 
been  entitled  to  the  performance  of  the  condition,  the  damages 
sustained  would  be  the  value  of  the  land  * 

Rules  in  Pennsylvania.  —  In  Pennsylvania,  it  is  held,t  that 
trover  cannot  be  maintained  for  a  chose  in  action,  as  a  share  of 
stock,  but  may  for  the  paper  or  evidence  of  debt.^  And  that  in 
such  case,  the  measure  of  damages  is  the  debt  of  which  the 
paper  is  the  evidence.t  ^ 

In  the  same  State  it  is  held,  that  the  damages  in  this  action 
are  the  value  or  current  price  of  goods  at  the  time  of  the  de- 
mand, and  the  jury  may  give  interest  by  way  of  further  dam- 
ages.§^  And  where  the  value  is  incapable  of  being  ascertained 
with  precision,  as  where  it  depends  on  the  taste,  fancy,  or  at- 
tachment of  the  owner,  or  on  a  contingency,  the  court  will 
rarely  disturb  the  verdict  on  the  ground  of  excessiveness  of 
damages.  And  the  jury  may  go  beyond  the  value,  when  there 
has  been  outrage  in  the  taking,  or  vexation  or  oppression  in  the 
detention.il  ^ 

*  In  Towle  v.  Lovet,  6  Mass.  394,  trover  t  Sewall  v.  Lancaster  Bank,  17  Serg.  &  R. 
was  brought  for  title-deeds,  but  the  quantum     285. 

of  damages  was  settled  by  consent.  J  Romig  v.  Romig,  2  Rawle,  241. 

In  Loosemore  v.  Radford,  9  Mees.  &  Wels.         §  Jacobs  v.  Laussatt,  6  S.  «&  R.  300. 
657,  Lord  Abinger  said,  "  The  case  resembles         ||  Dennis  v.  Barber,  6  S.  &  R.  420  ]  Berry 

that  of  an   action   of  trover  for   title-deeds,  v  Vanti-ies,   12  S.  &  R.   89  ;  Harger  v.  Mc- 

where  the  jury  may  give  the  full  value  of  the  Mains,  4  Watts,  418 ;  Taylor  v.  Morgan,  3 

estate  to  which  they  belong,  by  way  of  dam-  Watts,  333. 
ages  ;  although  they  are  generally  reduced  to 
40s.  on  their  being  given  up." 

1  See  Connor  f.  Hillier,  11  S.  C.  L.  R.  (Rich.)  193,  where  in  an  action  for  a  conversion 
of  a  certificate  of  bank  shares,  by  which  the  plaintiff  was  prevented  from  transferring  or 
otherwise  availing  himself  of  them,  their  foil  value  was  held  to  be  the  measure  of  the  dam- 
ages. 

2  A  note  payable  two  months  after  date,  given  to  an  insurance  company  for  premiums,  was 
pledged  by  the  company  as  collateral  security  for  a  loan  less  than  its  face.  The  maker  of  the 
note  paid  the  loan,  taking  up  the  note  before  its  maturity.  The  company  becoming  insolvent, 
assigned  their  property  to  assignees,  who  brought  trover  for  the  note.  The  action  was  held 
maintainable,  as  the  note  was  liable  for  the  company's  losses  up  to  its  maturity,  and  the  meas- 
ure of  the  recovery  was  the  balance  of  the  note  over  the  amount  of  the  loan.  Fell  v.  McHenry, 
42  Penn.  41.     See  also,  Craig  v.  Henry,  35  Penn.  120. 

3  Whenever  a  demand  is  necessary  to  change  a  lawful  possession  into  a  Avi'ongful  deten- 
tion, as  to  terminate  a  bailment,  no  damages  can  be  recovered  except  from  the  service  of  the 
writ.  But  where  the  possession  is  originally  unlawftil,  and  a  demand  therefore  unnecessary, 
the  plaintiff  is  entitled  to  damages  from  the  beginning  of  the  defendant's  possession.  Hall  v. 
Chapman's  Adm'rs,  35  Ala.  (N.  S.)  553  ;  Lawson's  Adm'r  v.  Lay's  Ex'r,  24  Ala.  (N.  S.) 
184. 

*  See  Backenstoss  v.  Stahler's  Adm'rs,  33  Penn.  257. 


CH.    XIX.]  INTEREST.  •  5G7 

Policies  of  Insurance.  —  A  stringent  application  of  this  form 
of  action  has  been  made  to  the  fraud  of  an  agent,  who 
had  represented  to  his  principal  that  he  had  eftected  an  [491] 
insurance,  when  in  fact  he  had  not.  In  trover  for  the 
policy,  Lord  Mansfield  would  not  permit  the  defendant  to  con- 
tradict his  own  representation,  and  laid  down  the  rule  of  dam- 
ages as  being  the  same  as  if  the  policy  had  been  actually  ef- 
fected. "  I  shall  consider,"  he  said,  "  the  defendant  as  the  actual 
insurer,  and  therefore  the  plaintiff  must  prove  his  interest  and 
loss."  *  So,  on  the  Pennsylvania  circuit,f  in  an  action  of  trover 
for  a  policy  of  insurance,  by  consent  of  parties  the  rule  of  dam- 
ages was  considered  the  same  as  if  the  suit  had  been  on  the 
policy. 

But  where  an  action  of  trover  was  brought t  for  a  policy 
which  it  appeared  was  canceled,  a  verdict  was  recovered  and 
sustained  for  2d.,  the  value  of  the  parchment  only. 

Interest.  —  Interest  seems  to  be  usually  given  by  way  of 
damages  for  the  detention  of  the  property.^  But  whether  the 
giving  of  interest  is  a  rule  of  law  or  a  matter  left  in  the  discre- 
tion of  the  jury,  does  not  clearly  appear.  I  infer  the  former.  In 
trover  for  rum,§  the  Supreme  Court  of  New  York  said,  "  The 
jury  were  competent  to  allow  interest  on  the  value  of  the  chattel 
from  the  time  of  conversion,  by  way  of  damages." 

So  II  interest  was  allowed  on  a  judgment  in  trover;  and  it 
was  said  that  "  in  trover,  interest  is  recoverable  on  the  value  of 
the  goods  from  the  time  of  the  conversion."  And  ^  in  an  action 
of  trover  for  furniture,  farming  utensils,  etc.,  the  judge  at  the 
circuit  told  the  jury  "  that  ihei/  might  allow  interest  by  way  of 
damages."  But  the  Supreme  Court  said,  on  a  motion  for  a  new 
trial,  "  The  plaintiff  was  entitled  to  interest  by  way  of  damages, 
from  the  time  of  the  conversion."  ^  So  also  in  Louisiana.**  And 
in  a  case  ft  already  cited,  it  was  said  that  "  interest  is  iiroperly 

*  Il.irding  v.  Carter,  Park  on  Insurance,  5.         ||  Bissel  v.  Hopkins,  4  Cowen,  53. 
t  Kohnc   V.    The  Insurance  Co.  of  North        If  Hyde  v.  Stone,  7  Wend.  354. 
America,  1  Wash.  C.  C.  11.  93.  **  New  Orleans  Draining  Co.  v.  De  Lezardi, 

J  Wills  V.  Wells,  8  Taunt.  264.  2  La.  Ann.  R.  281. 
§  Wilson  V.  Conine,  2  J.  R.  280.  tt  Baker  v.  Wheeler,  8  Wend.  505. 


1  In  the  earlier  cases  the  allowance  of  interest  was  generally  left  to  the  jury.  See  Williams 
V.  Crum,  27  Ala.  468,  and  Jenkins  v.  M'Conico,  26  Ala.  213.  But  it  can  no  longer  be  ques- 
tioned that  in  ordiuaiy  cases  in  this  country,  interest  is  recoverable  as  matter  of  law.  "  It  is 
as  necessary  a  jiart  of  complete  indemnity,"  says  Johnson,  C.  J.,  in  delivering  the  oj)iuion  of 
the  Court  of  A])peals  in  the  case  of  Andrews'?;.  Durant,  18  N.  Y.  496,  "as  tlie  value  itself. 
There  is  no  sense  in  the  idea  that  interest  is  any  more  in  the  discretion  of  the  jury  than  the 
value."     See  the  cases  cited  under  note  p.  477,  sup-a. 

^  See  Andrews  v.  Durant,  18  N.  Y.  496,  S!/yjra. 


568  CONVERSION    OF   PERSONAL   PROPERTY.  [CH.    XIX. 

given  in  trover,  as  well  as  the  value  of  the  property  converted."  * 
And  again,!    the  Court,  per  Cowen,  J.,  said,  "  The   action  is 

trover,  which  goes  for  the  actual  value  and  interest.t 
[492]    In  Connecticut,  also,  the  rule  of  damages  in  this  action 

has  been  declared  to  be  the  value  of  the  property  con- 
verted, with  interest  from  the  time  of  the  conversion.§  ^ 

Mitigation  of  Damages.  —  In  trover,  as  we  have  said,  the  con- 
version is  the  gist  of  the  action  ;  and  it  follows  that  the  recov- 
ery of  the  property,  or  its  repossession  by  the  plaintiff,  only 
goes  in  mitigation  of  damages.  And  this  is  true,  as  well  in 
regard  to  this  action  as  in  regard  to  that  of  trespass  for  personal 
property,  as  we  shall  have  occasion  hereafter  to  see.  And  on 
the  same  principle,  if  the  property  has  been  redelivered  to  the 
plaintiff  before  suit  brought,  he  can  recover  nothing  but  nomi- 
nal damages.^  This  is  the  original  English  rule,  and  has  been 
also  rejDcatedly  held  in  this  country.] |  ^     The  only  modification 

*  See  also,  Dillenback  v.  Jerome,  7  Cowen,  this  point  is  as  follows  :     Si  home  prist  mon 

294  ;  ante,  479.  cheval  et  ceo  chevaucha  et  puis  ceo  redeliver 

t  Stevens  v.  Low,  2  Hill,  132.  al  moy  uncore  jeo  poio  aver  cest  action  vers 

X  In  the  note  to  Mercer  v.  Jones,  3  Campb.  luy  :  car  ceo  est  nn  convercion,  et  le  redelivery 

476,  in  the  New  York  edition  of  these  Reports  nest  ascun  barr  del  action  mes  solement  serra 

(1821),  it  is  said  that  "  in  Massachusetts  it  is  un  mitigacion  de  damages.     Per  Cur.  in  the 

the  uniform  rule  to  allow  interest  on  the  value  Countess  of  Rutland's  case,  1  Roll.  Abr.  15. 

of  the  chattel,  from  the  time  of  the  conversion  Baldwin  v.  Cole,  6  Mod.  212  ;  5  Bac.  Ab. 

until  the  trial."  Trover,  D.  §  39  ;  Esp.  N.  P.  190,  191  ;  Cook 

In  England  this  matter  has  recently  been  v.  Hartle,  8  Car.  &  Payne,  568.     So  in  Mur- 

settled  by  statute;  the  3  &4  W.  IV.  c.  42,  ray  i;.  Burling,  10  J.  R.  172,  Thompson,  J., 

§  29  (14th  Aug.  1833),  declaring  that  in  all  said,  "It  is  every  day's  practice  to  sustain  this 

actions  of  ti'over  "  the  jury  on  the  trial  of  any  action  for   the  injury  suffered,  although  the 

issue,  or  on  any  inquisition  of  damages,  may,  owner  has  repossessed  himself  of  his  property." 

if  they  shall  think  Jit,  gWe  damages  in  the  nature  And  the  same  point  was  held  in  Reynolds  v. 

of  interest,  over  and  above  the  value  of  the  Shuler,  5  Cowen,  323. 

goods  at  the  time  of  the  convei'sion."  See  ante.  The  same  has  been  held  in  Massachusetts, 

505.  Wheelock  v.  Wheelwright,  5  Mass.  104  ;  Gibbs 

§  Clark  y.  Whitaker,  19  Conn.  R.  320.  v.  Chase,  10  Mass.  125;   Greenfield  Bank  v. 

II  The  language  of  the  oldest  authority  on  Leavitt,  17  Pick.  1. 

1  So  also  in  California,  Hamer  v.  Hathaway,  33  Cal.  117.     See  page  477,  note,  supra. 

2  Cook  V.  Loomis,  26  Conn.  483.  And  the  court  has  power  to  permit  by  order  the  return  in 
mitigation.  Rutland  and  Washington  R.  R.  Co.  v.  Bank  of  Middlcbury,  32  Vt.  639.  And 
•where  the  alleged  conversion  consisted  in  a  direction  not  to  allow  the  plaintiff  to  remove  on 
demand  the  machinery  of  a  workshop,  but  to  use  no  force  to  detain  it,  the  shop  being  at  the 
time  in  the  rightful  possession  of  the  defendant,  who  did  not  appropriate  or  remove  the  machin- 
ery, it  was  held  that  a  subsequent  notice  to  the  plaintiff"  by  the  defendant  that  he  relinquished 
aU  claim  to  the  machinery,  should  be  considered  in  mitigation.  Delano  v.  Curtis,  7  Allen, 
470. 

s  In  such  case  the  measure  of  damages  is  the  sum  paid  to  get  back  the  property.  Ford  v. 
Williams,  24  N.  Y.  359.  So  in  England,  where  the  goods  are  given  up,  but  by  a  course  of 
dealing  by  which  the  plaintiff  has  been  obliged  to  pay  a  sum  of  money  to  regain  them,  the  jury 
are  entitled  to  consider  that  sum  in  estimating  the  damages.  Tamvaco  v.  Simpson,  19  C.  B. 
(N.  S.)  453. 

And  in  general,  in  case  of  return,  the  plaintiff  is  entitled  to  damages  equal  to  the  value  of 
the  use  or  service  of  the  goods,  the  amount  of  injury  done  them,  and  the  expense  of  regaining 
them  otherwise  than  by  suit.    Ewing  v.  Blount,  20  Ala.  694. 

So  in  an  action  for  trespass  vi  et  armis  for  taking  away  certain  machinery  belonging  to  the 
plaintiff",  and  it  appearing  that  the  projjcrty  had  been  bought  by  the  plaintiff  at  the  sale  made 
by  the  constable  for  the  defendant,  the  measure  of  the  jjlaintiff's  damages  was  held  to  be,  not 


CH.    XIX.]  GENERAL   RULES.  56 9 

that  can  be  said  to  exist  of  this  rule  is,  perhaps,  in  those  cases 
where,  intermediate  the  conversion  and  the  return  of  the  prop- 
erty clahned,  special  damage  has  been  sustained  by  the  plaintiff; 
and  in  such  cases  the  special  damage  demanded  must  be  dis- 
tinctly alleged  in  the  declaration  *  Upon  this  general  principle 
it  has  been  held  in  Massachusetts,  that  where  the  property  has 
been  sold,  and  the  proceeds  applied  to  the  payment  of  the  plain- 
tiff's del)ts,  or  otherwise  to  his  use,  the  facts  may  be  shown  in 
mitigation  of  damages.!  ^  So,  if  they  are  taken  by  an  attaching 
creditor  of  the  defendant  out  of  the  plaintiff's  hands,  after  he 
has  promised  to  return  them,  t 

Property  m  a  Third   Person  is  no   Defense. — Whether  the 
defendant  can  go  further  and  show  that  the  property  belonged 
to  a  third  person,  is  more  doubtful.     It  has  been  said  by 
very  high  American  authority,  "that  in  this  action  the  [493] 

*  Moon  V.  Raphael,  2  Bing.  N.  C.  310.  J  Kaly  v.  Shed,  10  Met.  317. 

t  Pierce  v.  Benjamin,  14  Pick.  356. 

the  value  of  the  property,  but  what  it  cost  Mm  to  regain  its  possession  —  what  he  lost  by  his 
deprivation  of  it,  and  such  Other  damages  as  were  commensurate  with  the  injury.  Mclnroy  v. 
Dyer,  47  Penn.  118.     See  post,  548,  note. 

An  offer  to  return  the  property,  which  the  plaintiff  rightly  declined,  does  not  affect  the  dam- 
ages.    Stickney  v.  Allen,  10  Gray,  352. 

And  if  a  defendant  has  repudiated  the  possession  of  goods  under  a  contract,  and  claimed  by 
a  wrongful  conversion,  he  is  not  entitled  to  the  benefit  of  the  contract  to  reduce  the  damages. 
Backeustoss  v.  Stahler's  Adm'rs,  33  Penn.  251. 

But  if  a  return  of  goods  has  become  impossible  by  operation  of  law,  this  should  operate  in 
mitigation  of  the  damages  if  not  in  bar  of  the  action.  This  was  held  in  a  case  where  the  sheriff 
had,  under  execution  in  favor  of  a  third  person,  dispossessed  the  defendant  and  taken  possession 
of  the  goods.     Ball  v.  Liney,  44  Barb.  505. 

In  a  peculiar  case  in  Connecticut,  a  farm  with  the  stock  thereon  had  been  conveyed  by  a 
father  to  his  sons  in  consideration  of  love  and  affection,  and  on  condition  of  their  tmdcrtaking 
to  support  their  mother  during  her  life,  and  pay  certain  debts  of  the  grantor.  The  deed  con- 
tained a  proAasion  that  the  grantees  "  were  not  to  reduce  or  impair  the  value  of  the  stock  " 
conveyed.  This  clause,  in  the  opinion  of  two  of  the  three  judges,  disenabled  the  sons  from 
selling  the  stock,  even  with  a  view  to  the  thrifty  management  of  the  farm,  and  although  re- 
placing it  by  other  stock ;  and  in  an  action  of  trover  against  the  sons  for  the  conversion  and 
sale  of  the  stock,  it  was  accordingly  held,  in  opposition  to  the  opinion  of  the  chief  justice,  that 
neither  their  i)ayment  of  the  debts  nor  fulfillment  of  the  other  conditions  of  the  deed,  nor  the 

Eurchasc  and  keeping  by  them  of  other  stock  of  a  value  eqiialing  or  exceeding  that  sold,  could 
e  taken  in  mitigation  of  the  damages.     Munson  v.  Munson,  24  Conn.  115. 

This,  we  think,  will  be  regarded,  at  the  present  day,  as  a  severe  carrying  out  of  the  theory  of 
trover,  which  being  an  action  for  the  value  of  specific  property  of  which  the  owner  is  wrongfully 
deprived,  allows  in  reduction  of  the  amount  of  the  recovery  only  the  return  to  the  owner  of  the  same 
property,  or  proof  that  the  plaintiff  had  but  a  qualified  interest  in  it,  the  remaining  interest  being 
in  the  defendant.  But  we  think  the  profession  will  incline  to  dissent  with  the  chief  justice. 
The  disposition  to  take  all  the  circumstances  into  account  is  now  carried  so  far,  even  where 
forms  of  action  still  prevail,  that  it  would  scarcely  be  generally  tolerated  that  a  plaintiff',  under 
facts  like  those  in  this  case,  and  without  sustaining  any  damage  from  the  sale  of  the  stock,  should 
recover  its  full  value. 

1  So  in  Ohio  and  New  Hampshire.  Doolittle  v.  McCullough,  7  Ohio  St.  299 ;  Howard  v. 
Cooper,  45  N.  H.  339.  But  see  Edmondson  v.  Nuttall,  17  C.  B.  280,  and  Swire  v.  Leach,  18 
C.  B.  (N.  S.)  479,  491,  ante,  482,  note. 

Where  property  attached  on  mesne  process  remains  in  the  plaintifi''s  possession  until  judg- 
ment and  execution  in  the  attachment  suit,  the  measure  of  his  damages  is  the  value  of  the 
property  at  the  time  it  was  taken  on  execution,  with  interest.  Henshaw  v.  Bank  of  Bellows 
Falls,  lb  Gray,  568. 


570  CONVERSION    OF   PERSONAL    PROPERTY.  [cil.    XIX. 

defendant  may  disprove  the  plaintiff's  title  by  showing  a 
paramount  title  in  a  stranger."*  But  it  may  well  be  doubted 
whether  the  doctrine  can  be  maintained  to  the  extent  in  which 
this  language  lays  it  down.  In  New  York  it  has  been  held,  that 
the  defendant  cannot  set  up  property  in  a  third  person,  without 
showing  some  claim,  title,  or  interest  in  himself  derived  from 
such  person ;  f  and  a  plea  of  property  in  a  third  person  has  been 
held  bad.t  ^  And  in  England  it  has  been  held  in  several  cases, 
that  where  by  his  acts  or  acknowledgments  the  defendant  had 
admitted  the  title  to  be  in  the  plaintiff,  he  shall  not  be  received 
afterwards  to  deny  it.§ 

Suits  by  Part  Owners.  —  The  plaintiff  either  in  this  action  or 
in  trespass,  may  sue  separately  for  his  aliquot  share  or  propor- 
tion of  interest  in  a  chattel,  and  the  defendant  may  give  the 
joint  interest  of  others  in  evidence,  in  mitigation  of  damages. 
If  the  plaintiff  is  a  tenant  in  common,  and  the  defendant  wishes 
to  avail  himself  of  the  plaintiff's  omission  to  join  his  co-tenants 
in  the  suit,  he  may  plead  in  abatement.jl  But  even  if  he  neg- 
lect to  make  such  plea,  he  may  still  avail  himself  of  the  plain- 
tiff's want  of  title  to  the  whole  property,  for  the  purpose  of  re- 
ducing the  damages.^ 

Where  "H  a  creditor  of  the  husband  having  taken  in  execution 
and  sold  trust-property  of  the  wife,  and  the  husband  having 
purchased  it  at  the  sale  for  less  than  its  value,  in  an  action  of 
trover  brought  by  the  trustee  against  the  creditor,  it  was 
[494]  held  in  Connecticut  that  proof  of  tliis  matter  was  ad- 
missible in  mitigation  of  damages.** 

In  Tennessee,  where  (during  the  existence  of  slavery)  a  slave 

*  Greenleaf  on  Evidence,  ii.  §  648 ;  Kotan  75  ;  Wheelwright  v.  Depcyster,  1  J.  K.  471  ; 

u.  Fletcher,  15  J.  R.  207.  Chandler  v.  Spear,  22  Verm.  388. 

t  Dvxncan  v.  Speer,  11  Wend.  54.  In  the  King's  Bench,  in  Mountford  v.  Gib- 
{  Hurst  V.  Cook,  19  Wend.  463.  son,  4  East,  441  and  447,  which  was  an  action 
§  Hawes   v.  Watson,  2  Barn.  &  Cres.  541  ;  of  trover,  it  was  said  that  in  trespass,  payments 
Gosling  V.  Birnie,  7  Bing.  339  ;  Stonard  v.  made  by  an  executor  de  son  tort  in  due  course 
Dunkin,  2  Camp.  344.    See  on  this  point  also,  of  administration,  should  be  recouped  in  dam- 
King  V.  Richards,  6  Whart.  418  ;  Ogle  v.  At-  ages.     See  also,  Buller's  N.  P.  48. 
kinson,   5    Taunt.    759  ;   Lacouch   v.    Towle,  1  Baldwin  v.  Porter,  12  Conn.  473. 
3  Esp.  Cases,  114;  Kennedy  v.  Strong,  14  J.  **But  in  Alabama,  where  a  sheriff  seized 
R.  128.  the  property  of  the  plaintiff,  and  sold  it  under 
II  Nelthorpe   v.   Dorrington,  2    Lev.    113;  execution  against  H.  and  by  direction  of  H. 
Brown  v.   Hedges,  1   Salk.  290 ;  Addison  v.  paid  over  the  surplus,  after  satisfying  the  ex- 
Overrend,  6  T.  R.  766  ;  Sedgworth  v.  Over-  ecutors,  to  G.  (the  plaintiff), or  his  agent,  —  it 
rend,  7  T.  R.  279  ;  Heath  v.  Hubbard,  4  East,  was  held  that  the  surplus  thus  paid  over  could 
110,  121  ;   Bloxam  v.  Hubbard,  5  East,  407  not  go  in   reduction  of  damages.     Locke  v. 
and  420  ;  Scott  v.  Godwin,  1  Bos.  &  Pull.  67-  Garrett,  16  Ada.  698. 

1  See  Prosser  v.  Woodward,  21  Wend.  205. 

^  And  the  plaintiff  in  such  case  can  recover  damages  only  in  proportion  to  his  interest.  Sher- 
man V.  Fall  River  Iron  Works  Co.  5  Allen  (Mass.),  213. 


CH.   XIX.]  GENERAL   RULES.  671 

hired  for  general  and  common  service  was  employed  in  any 
hazardous  business  without  the  consent  of  the  owner,  it  was  a 
conversion,  and  the  hirer  was  liable  for  the  value ;  or,  if  the 
owner  did  not  choose  to  consider  it  a  conversion,  he  was  liable 
in  damages  for  any  injury  the  slave  received  while  engaged  in 
such  business.*  ^ 

Different  Aspects  of  the  Claim. —  As  has  been  already  no- 
ticed, some  confusion  appears  to  have  been  introduced  into  the 
rule  of  damages  in  this  action,  owing  to  the  different  aspects 
in  which  the  suit  is  brought;  it  being  sometimes  analogous 
to  an  action  in  an  ordinary  case  of  contract,  as  to  test  a  right 
of  lien,  and  sometimes  in  the  nature  of  a  suit  to  redress  a  willful 
trespass.! 

On  Principle  the  Eule  should  not  Depend  on  the  Form  of 
the  Action. —  An  effort  might  be  made  to  render  the  rule  of 
damages  in  trover  and  trespass  identical  without  reference  to 
the  form  of  the  remedy  resorted  to,  and  de23endent  only  on  the 
character  of  the  defendant's  act.  But  as  the  law  at  present 
stands,  there  seems  no  warrant  for  a  distinction  between  tortious 
conversions  and  hond  fide  takings,  except  so  far  as  the  malice 
goes  to  prove  a  conversion.  If  that  fact  be  established,  the  char- 
acter of  the  taking  ig  put  out  of  view.  It  seems,  however, 
that  were  the  thing  to  be  settled  on  principle,  the  rule  might 
be  thus  laid  down. 

General  Conclusions  as  to  the  Principles  which  should  control 
these  Actions.  —  Where  the  original  conversion  is  wholly  un- 
accompanied by  malice,  in  other  words,  where  it  is  not  willful, 
the  rule  of  damages  is  a  pure  question  of  law,  on  which  the 
jury  is  to  be  controlled  by  the  court.^  In  these  cases,  the  jury 
should  be  directed  to  give  the  value  at  the  time  of  conversion, 
with  interest,  unless  the  plaintiff  has  been  deprived  of  some 

*  Jliillcn  V.  Ensley,  8  Humphreys,  428.  trover  will  also  lie  ;  for  one  may  qualify,  but 

t  Whenever  trespass  for  taking  goods  will     not  increase,  a  tort.     2  Saunders,  47  k. 
lie,  that  is,  where  they  are  taken  wrongfully, 

1  And  if  the  slave  died  while  engaged  in  such  business,  the  lowest  measure  of  the  damages 
was  his  value.  Traynor  v.  Johnson,  3  Head  (Tcnn.),  44.  In  an  action  brought  by  the  hirer 
of  a  slave  against  the  owner,  to  recover  damages  for  the  detention  of  the  slave,  it  was  competent 
for  the  owner  to  show,  for  the  purpose  of  reducing  the  damages  claimed,  or  of  i)reventing 
a  recovery  of  anything,  that  by  the  unjustifiable  treatment  of  the  slave  by  the  plaintiff, 
a  permanent  injury  was  done  to  the  slave,  diminishing  his  value.  Trotter  v.  M'Call,  26  Miss. 
410. 

2  The  motive  by  which  a  defendant  was  influenced  in  converting  to  his  own  use  the  property 
of  another,  is  admissible  only  when  introduced  to  repel  an  attempt  by  the  plaintift'  to  recover 
from  him,  in  an  action  of  trover,  exemplary  damages.    Parker  v.  Dement,  9  Gill  (Md.),  8. 


572  CONVERSION  OF  PERSONAL  PROPERTY.       [CH.  XIX. 

particular  use  of  the  property  of  which  the  defendant  had 
knowledge ;  in  that  case,  if  such  use  would  have  increased  its 
value  to  the  plaintiff,  the  jury  should  give  the  highest  value  of 
the  chattel  at  any  time  between  the  conversion  and  the 
[495]  trial,  with  interest  from  such  time,  i.  e.  the  time  of  high- 
est value,  by  way  of  damages  for  the  detention.-^  But 
even  this,  it  is  apparent,  is  a  very  feeble  protection  for  property 
which  has  no  market  price  or  commercial  value,  and  where, 
from  the  necessity  of  the  case,  the  jury  must  be  left  to  a  large 
discretion. 

If  the  property  converted  be  a  chose  in  action,  as  a  bill  or 
note,  or  the  security  for  the  payment  of  money,  the  measure  oi 
damages  is  prima  facie  the  face  of  the  bill  or  note.  If  the  in- 
strument or  security  sued  for  be  not  for  the  payment  of  money, 
but  a  contract  for  the  transfer  of  property  or  the  performance 
of  some  act,  then  the  value  of  the  property  or  of  the  act  will 
furnish  the  rule  of  damages. 

If  the  taking  be  willful,  more  difficulty  presents  itself  We 
have  seen  that  where  the  chattel  was  altered  and  increased  in 
value,  damages  have  been  given  in  some  cases  to  the  full  value 
of  the  increased  article,  on  the  ground  that  the  taking  was  maid 
fide.  If  this  be  right,  then  it  ought  always  to  be  competent  for 
the  plaintiff  to  show  malice  on  the  part  of  the  defendant,  to 
aggravate  the  damages.  But  this  would  be  irreconcilable  with 
the  numerous  cases  *  which  hold  that  the  conversion  is  the  gist 
of  the  action,  and  the  taking  immaterial.^  The  true  rule  would 
appear  to  be,  to  make  the  measure  of  damages  depend  not  on 
the  form,  but  upon  the  nature  of  the  action  ;  and  where  trover 
is  brought  as  a  substitute  for  trespass,  to  make  the  rule  of  dam- 
ages correspond.^  If  this  were  so,  then  if  the  conversion  were 
willful  the  measure  of  damages  would  be  as  above  laid  down, 
with  the  exception  that  they  might  be  increased  in  the  discre- 
tion of  the  jury  for  the  malicious  act.     If  the  property  had  been 

*    Wilbraham  v.  Snow,  2  Saunders,  47. 

1  In  the  case  of  Dorsctt,  Adm'r,  v.  Frith,  25  Geo.  537,  Lumpkin,  J.  says :  "  Upon  examina- 
tion I  apprehend  it  will  be  found  that  whenever  the  books  speak  of  the  highest  value  from  the 
date  of  the  conversion  to  the  time  of  the  trial,  as  the  measure  of  damages,  they  refer  to  cases 
where  it  is  possible  to  deliver  the  property  in  discharge  of  the  verdict."  The  defendant  cannot 
avail  himself  of  anything  diminishing  the  value  of  the  property,  which  occurs  while  it  is  in  his 
wrongful  possession.     Carter  v.  Streator,  4  Jones  (N.  C.)  L.  62. 

2  Moflfatt  V.  Pratt,  12  How.  P.  R.  48. 

2  Such  is  the  rule  in  Pennsylvania.  Forsyth  v.  Wells,  41  Penn.  St.  291,  infra;  see  p.  208, 
note  1.  See  also  Long  v.  Lamkin,  9  Cush.  (Mass.)  361,  where,  in  an  action  of  ti'espass  against 
a  deputy  sheriff  for  wrongful  seizure  and  sale  of  personal  property,  the  principle  of  the  rule  of 
mitigation  in  trover  was  applied  by  allowing  judgment  for  the  plaintiff  only  on  condition  of  his 
remitting  from  the  damages  the  price  of  a  cow,  which,  although  among  the  property  wrong- 
fully seized,  had  been  returned  to  the  owner.     See  also  Kaley  v.  Shea,  10  Met.  (Mass.)  317. 


CH.   XIX.]  GENERAL   RULES.  573 

altered  and  increased  in  value,  the  rule  would  again  depend  on 
the  character  of  the  conversion.  If  that  were  willful,  then  the 
value  of  the  articles  so  increased  would  be  the  rule.  But  this 
should  never  be,  where  the  act  was  hand  fide  ;  ^  and  in  such  case, 
the  true  rule  would  be  to  allow  the  defendant  for  whatever 
value  his  labor  had  actually  conferred  on  the  property.^ 

1  Where  one,  havinj;  tortiously  cut  and  carried  away  trees  from  another's  land,  sells  a  part 
of  them  to  a  person  who  hud  no  knowledge  of  the  wrong,  the  owner,  even  if  he  can  maintain  an 
action  of  trover  against  them  jointly,  will  be  entitled,  in  such  action,  to  recover  of  the  vendee 
only  to  the  value  of  the  part  which  he  purchased.     Moody  v.  Whitney,  38  Me.  174. 

'^  We  can  hardly  add  anything  more  to  what  has  been  said  by  the  author  on  this  subject. 
See  p.  41,  note*.  Periiaps  we  have  already  said  too  much.  Ante,A\,  note  1.  But,  before 
leaving  the  subject  of  trover,  wc  cannot  refrain  from  a  reference  to  some  cases  which  illustrate 
how  keenly  even  the  judges  of  the  Supreme  Court  of  Pennsylvania,  one  of  the  most  conserva- 
tive States  of  the  Union  in  its  adherence  to  the  traditional  practice  and  pleading  of  the  com- 
mon law,  feel  the  embarrassment  of  that  system  in  relation  to  this  and  cognate  actions. 
Without  contemplating  the  abolition  of  forms  of  action,  it  will  be  seen  that  they  strive  to  bend 
them  so  as  to  reach  in  part  the  object  which,  as  we  humbly  think,  can  be  completely  attained 
only  by  that  radical  reform.  To  us,  the  effort  to  show  the  practicability  of  stating  the  actual 
facts  of  the  case  and  obtaining  the  same  relief  in  various  forms,  seems  to  that  extent  to  show 
the  inutility  of  those  forms.  In  Mclnroy  v.  Dyer,  47  Penn.  St.  118,  which  was  an  action  of 
trespass  ci  et  annis  for  taking  away  certain  machinery  belonging  to  the  plaintiff,  the  Supreme 
Court  of  that  State,  after  applying  in  mitigation  of  the  damages  the  rule  in  trover  (see  p.  481, 
note),  and  after  citing  the  following  cases :  Curtis  v.  Ward,  20  Conn.  204 ;  Pierce  v.  Benjamin, 
14  I'ick.  356  ;  Greentield  Bank  v.  Leavitt,  17  Ibid.  1  ;  Eeynolds  v.  Schuyler,  5  Cowen,  323, 
and  Ewing  v.  Blount,  20  Ala.  694,  use  the  following  language  (per  Strong,  J.)  :  "  These  were 
actions  of  trover  it  is  true,  but  there  is  no  reason  for  a  ditierent  rule  in  trespass.  In  both,  the 
general  principle  is,  that  a  plaintiff  is  entitled  to  such  damages  as  he  has  actually  sustained.  In 
both,  the  value  of  the  property  lost  by  the  plaintiff"  is  the  general  standard  of  measurement  of 
damages,  laying  out  of  consideration  what  may  be  recovered  in  trespass  for  acts  of  outrage  and 
oppression  accompanying  the  taking.  What  will  make  the  plaintiff"  whole  is  the  same  in  one  form 
of  action  as  in  another.  No  distinction  is  recognized  by  the  courts."  But  as  we  shall  see  in 
the  case  next  cited,  the  learned  court  elsewhere  reject  any  distinction  between  the  two  forms  of 
action  growing  out  of  the  consideration  as  to  the  mode  of  the  taking  here  passed  over.  That 
case  (Forsyth  v.  Wells,  41  Penn.  St.  291),  which  so  well  illustrates  our  subject  that  we  shall 
cite  from  it  somewhat  at  large,  was  an  action  of  trover  for  mining  and  carrying  away  coal  from 
the  plaintiff's  lands.  On  the  trial,  the  Court  of  Common  Pleas,  having  decided  against  the 
argument  of  the  defendant  that  trover  would  lie,  held  further  that  the  measure  of  the  plaintiff's 
damages  was  not  simply  the  value  of  the  coal  in  the  ground  but  its  value  after  it  had  been 
"  dug,"  or  Avhat  was  called  "  knocked  down,"  the  difference  having  been  about  as  one  to 
eight. 

On  error  the  Supreme  Court  agreed  that  the  action  was  properly  brought,  since  the  defend- 
ant below,  as  it  appjeared,  had  not  claimed  a  line  which  would  include  the  coal  taken  out,  but 
had  gone  beyond  the  proper  limit  by  mistake.  But  the  learned  court  sent  the  case  back  for  a 
new  trial  on  the  gi-ound  that  the  measure  of  damages  should  have  been  the  same  as  in  trespass 
for  mesne  profits,  and  that  if,  as  the  jury  appeared  to  have  found,  the  defendant  below  had 
been  guilty  of  no  intentional  wrong,  he  ought  to  have  been  charged,  not  with  the  value  of  the 
coal  after  he  had  been  at  the  expense  of  mining  it,  but  only  with  its  value  in  place,  and  with 
such  other  damage  to  the  land  "  as  his  mining  might  have  caused,  which  would  manifestly  be 
the  measure  in  trespass  for  mesne  profits." 

The  learned  chief  justice,  in  delivering  the  opinion  of  the  court,  discusses  the  rule  of  dam- 
ages as  affected  by  the  form  of  the  action  as  follows  :  "  The  plaintiff  insists  that  because  the 
action  is  allowed  for  the  coal  as  personal  property  —  that  is,  after  it  had  been  mined  or  severed 
from  the  realty —  therefore,  by  necessary  logical  sequence,  she  is  entitled  to  the  value  of  the 
coal  as  it  lay  in  the  pit  after  it  had  been  mined ;  and  so  it  was  decided  below.  It  is  apparent 
that  this  view  would  transfer  to  the  plaintiff  all  the  defendant's  labor  in  mining  the  coal,  and 
thus  give  her  more  than  compensation  for  the  injury  done.  Yet  we  admit  the  accuracy  of  this 
conclusion,  if  we  may  properly  base  our  reasoning  on  the  form  rather  than  on  the  principle  or 
purpose  of  the  remedy.  But  this  we  may  not  do,  and  especially  we  may  not  sacrifice  the  prin- 
ciple to  the  very  form  by  which  we  are  endeavoring  to  enforce  it.  Principles  can  never  be 
realized  without  forms,  and  they  are  often  inevitably  embarrassed  by  unfitting  ones ;  but  still 
the  fact  that  the  fonn  is  for  the  sake  of  the  principle  and  not  the  principle  for  the  form,  re- 
quires that  the  form  shall  serve,  not  rule  the  principle,  and  must  be  adapted  to  its  office. 

"  Just  compensation  in  a  special  class  of  cases  is  the  principle  of  the  action  of  trover,  and  a 


574  conversion  of  personal  property.  [ch.  xix. 

Satisfaction  of  a  Judgment  for  the  Value  of  the  Property 
TRANSFERS  THE  TiTLE.  —  It  woulcl  not  be  proper  to  leave  this 
subject  without  noticing  the  question  how  far'  the  recovery  of  a 
judgment  in  trover  vests  the  property  in  the  defendant. 
[496]  If  the  plaintiff  recovers  the  value  of  the  property,  and 
the  judgment  is  satisfied,  there  would  seem  to  be  no 
doubt  that  the  title  to  the  property  should  and  does  vest  in  the 


little  study  will  show  us  that  it  is  no  unyielding  form,  but  adapts  itself  to  a  great  variety  of 
circumstances.  In  its  original  purpose,  and  in  strict  form,  it  is  an  action  for  the  value  of  per- 
sonal property  lost  by  one  and  found  by  another,  and  converted  to  his  own  use.  But  it  is  not 
thus  restricted  in  practice,  for  it  is  continually  applied  to  every  form  of  wrongful  conversion 
and  of  wrongful  taking  and  conversion,  and  it  atfords  compensation  not  only  lor  the  value  of 
the  goods,  but  also  for  outrage  and  malice  in  the  taking  and  detention  of  them.  6  S.  &  R. 
426;  12  Ibid.  93  ;  3  Watts,  333.  Thus  form  yields  to  purpose  for  the  sake  of  completeness  of 
remedy.  Even  the  action  of  replevin  adapts  itself  thus.  1  Jones,  381.  And  also  does  trespass. 
7  Casey,  456. 

"  In  very  strict  form  trespass  is  the  proper  remedy  for  a  wrongful  taking  of  personal  prop- 
erty and  for  cutting  timber,  or  quarrying  stone  or  digging  coal  on  another  man's  land  and 
carrying  it  away ;  and  yet  the  trespass  may  be  waived  and  trover  maintained  without  giving  up 
any'claun  for  any  outrage  or  violence  in  the  act  of  taking.  3  Barb.  13.  It  is  quite  apparent, 
therefore,  that  this  foiTU  of  action  is  not  so  uniform  and  rigid  in  its  administration  as  to  force 
upon  us  any  given  or  arbitrary  measure  of  compensation.  It  is  simply  a  form  of  reaching  a  just 
compensation,  according  to  circumstances,  for  goods  wrongfully  appropriated.  When  there  is 
no  fi-aud,  or  violence,  or  malice,  the  just  value  of  the  property  is  enough.  11  Casey,  28.  When 
the  taking  and  conversion  are  one  act,  or  one  continued  series  of  acts,  trespass  is  the  more  ob- 
vious and  proper  remedy  ;  but  the  law  allows  the  waiver  of  the  taking  so  that  the  party  may 
sue  in  trover,  and  this  is  often  convenient.  Sometimes  it  is  even  necessary,  because  the  plain- 
tiff, with  full  proof  of  the  conversion,  may  fail  to  prove  the  taking  by  the  defendant.  But 
when  the  law  does  allow  this  departure  from  the  strict  form,  it  is  not  in  order  to  enable  the 
plaintiff,  by  his  own  choice  of  actions,  to  increase  his  recovery  beyond  just  compensation,  but 
only  to  give  him  a  more  convenient  one  for  recovering  that  much.  Our  case  raises  a  question 
of  taking  by  mere  mistake,  because  of  the  uncertainty  of  boundaries,  and  we  must  coniine  our- 
selves to  this.  The  many  conflicting  opinions  on  the  measure  of  damages  in  cases  of  willful 
wrong,  and  especially  the  very  learned  and  thoughtful  opinions  in  the  case  of  Silsbury  v. 
McCoon,  4  Denio,  332,  and  3  Comst.  379,  warn  us  to  be  careful  how  we  express  ourselves  on 
that  subject. 

"  We  do  find  cases  of  trespass  where  judges  have  adopted  a  mode  of  calculating  damages  for 
taking  coal,  that  is  substantially  equivalent  to  the  rule  laid  down  by  the  Common  Pleas  in  this 
case,  even  where  no  willful  wrong  was  done  unless  the  taking  of  the  coal  out  by  the  plaintiff's 
entry  was  regarded  as  such.  But,  even  then,  we  cannot  avoid  feeling  that  there  is  a  taint  of 
arbitrariness  in  such  a  mode  of  calculation,  because  it  does  not  truly  mete  out  just  compensa- 
tion.    5  M.  &  W.  351  ;  9  Ibid.  672  ;  3  Queen's  B.  283,  and  see  28  Eng.  L.  &  E.  175. 

"  Where  the  defendant's  conduct,  measured  by  the  standard  of  ordinary  morality  and  care 
■which  is  the  standard  of  the  law,  is  not  chargeable  with  fraud,  violence,  or  willful  negligence  or 
wrono-,  the  value  of  the  property  taken  and  converted  is  the  measure  of  just  compensation.  If 
raw  material  has,  after  appropriation  and  without  such  wrong,  been  changed  by  manufacture 
into  a  new  species  of  property,  as  grain  into  whiskey,  grapes  into  wine,  furs  into  hats,  hides 
into  leather,  or  trees  into  lumber,  the  law  either  refuses  the  action  of  trover  for  the  new  article, 
or  limits  the  recovery  to  the  value  of  the  original  article.  6  Hill,  425,  and  note;  21  Barbour, 
92  ;  23  Conn.  523;  38  Maine,  174.  Where  there  is  no  wrongful  purpose  or  wrongful  negU- 
gence  in  the  defendant,  compensation  for  the  real  injury  done  is  the  purpose  of  all  remedies ; 
and  so  long  as  we  bear  this  in  mind  we  shall  have  but  little  difficulty  in  managing  the  forms 
of  actions  so  as  to  secure  a  fair  result." 

In  the  case  of  Pennsylvania  R.  Co.  v.  Zug,  47  Penn.  St.  480,  Agnew,  J.,  in  delivering  the 
opinion  of  the  same  learned  tribunal,  says  (p.  483) :  "  It  is  a  source  of  great  regret  to  judges  that, 
after  days  spent  in  the  trial,  they  are  compelled  to  say  to  a  jury  they  cannot  decide  a  cause 
npon  its  merits,  but  the  plaintiff  must  fail  because  he  has  misconceived  his  form  of  action.  It 
is  also  often  a  cause  of  regret  in  the  Supreme  Court,  that  a  case  otherwise  well  tried,  must  be 
reversed  on  this  technical  ground.  It  would  be  a  wise  provision  to  confer  the  power  of  amend- 
ment over  the  form  of  action  with  such  an  equitable  control  of  the  costs  as  would  prevent  in- 
justice." This  power,  which  exists  in  Massachusetts,  the  author  thinks  too  dangerous.  Ante, 
41.  See,  for  an  illustration  of  the  new  system  in  its  most  radical  form,  Jones  v.  Steamship 
Cortes,  17  Cal.  487,  cited  208,  note  1. 


CH.   XIX.]  GENERAL   RULES.  575 

defendant,  he  having  paid  its  value  *  But  how  iiir  this  transfer 
of  title  depends  on  the  judgment,  and  how  far  on  its  satisfaction, 
seems  by  no  means  clear;  and  the  better  opinion  would  appear 
to  be  that  if  the  judgment  is  not  for  the  value  of  the  property, 
or  if  it  remain  unpaid,  the  title  is  unaltered.!  ^ 

*  Morris  ('.  Robinson,  3  B.  &  C.  196.  well  reviewed.     See  Cooper  v.   Shepherd,  3 

t  So  in  Indiana,  a  recovery  of  nominal  dam-  C.  B.  266.     In   New  York,  see  Osterhont  v. 

ages  does  not  divest  the  plaintiff's  title.    Barb  Roberts,  8  Cowen,  43  ;  Betts  v.  Lee,  5  J.  R. 

V.  Fish,  8  Blackf.  481,  wliere  the  cases  are  a\\  348  ;  2  Kent  Com.  388,  note  c,  5th  edition. 

-  The  obtaininjj  of  the  value  by  the  plaintiff  operates  as  a  transfer  of  the  title  from  the  time 
of  the  conversion.  Hepburn,  Adm'r,  v.  Sewall,  5  11.  &  J.  211 ;  Stirling  i;.  Garritee,  18  Md. 
463. 


CHAPTER  XX. 

THE  EULE  OF  DAMAGES  IN  ACTIONS  BROUGHT  FOR  THE  RECOVERY  OF 
SPECIFIC  PERSONAL  PROPERTY  ;  THE  COMMON-LAW  ACTIONS  OF  DE- 
TINUE  AND    REPLEVIN. 

Detinue.  —  Nature  of  the  Proceeding  of  Replevin.  —  In  this  Action  Damages  can 
be  recovered  by  both  Parties.  —  Where  the  Defendant  succeeds,  he  is  entitled 
to  Interest  upon  the  Value  of  the  Property  during  its  Detention.  —  Hovr  the 
Value  is  to  be  estimated.  —  Damages  recoverable  by  the  Plaintiflf. 

Two  forms  of  action  are  prescribed  by  the  common  law  for 
the  recovery  of  specific  personal  property  —  detinue  and  re- 
plevin ;  the  first  being  generally  used  where  there  was  a  tor- 
tious detention  only,  the  latter  where  there  was  a  tortious 
taking. 

Detinue.  —  In  detinue,  as  in  debt,  no  damages  were  generally 
given  for  the  thing  itself,  that  being  recoverable  in  specie ;  but 
merely  for  its  detention.  If,  however,  the  property  was  not 
finally  returned,  then  damages  might  be  given  for  its  value.* 
"  The  action  of  detinue,"  says  the  Supreme  Court  of  Tennessee, 
"  is  for  the  thing  detained  and  damages  for  detention :  the  value 
of  the  property  is  ascertained  by  the  jury ;  and  the  judgment  is 
in  the  alternative  for  the  sum  so  found,  as  the  value  in  case  the 
thing  recovered  cannot  be  had."  f  The  question  on  the  issue 
of  7ion  detinet  is  whether  the  chattel  be  detained,  and  if  so,  what 
is  its  value  and  what  the  damages  for  its  detention ;  and  so  the 
ordinary  modern  form  of  verdict  in  detinue  finds  the  value  of 
the  property  and  damages  for  its  detention.^ 

But  as  has  been  said,  if  for  any  reason  the  property  cannot 

be  returned,  the  plaintiff  is  entitled  to  its  full  value.     So  in  the 

early  cases,  where  we  often  find  detinue  brought  for  char- 

[498]  ters  or  title-deeds,  if  the  charters  were  destroyed  or  made 

*  Sayer  on  Damages,  ch.  xiv.  pp.  69  and        t  Waite  v.  Dolby,  8  Humphreys,  406. 
70. 

1  Damages  for  the  detention  may,  without  proof  of  a  demand,  be  recovered  in  tliis  action 
from  the  commencement  of  the  defendant's  unlawful  possession.  Gardner  v.  Boothe,  31  Ala. 
186. 


CII.    XX.]  REPLE\TN.  577 

way  with  (eloigned),  the  phiintiff  recovered  all  in  damages. 
And  so  in  a  recent  case  where  detinue  was  brought  for  stock 
certificates,  which  had  been  returned  pendente  lite,  it  was  held 
that  the  jury  might  confine  themselves  to  an  assessment  of 
damages.*  In  this  case  the  property  was  demanded ;  the  stock 
was  worth  £3  bs. ;  when  it  was  delivered  it  had  fallen  to  £1, 
and  the  plaintiff  was  held  entitled  to  recover  the  difference.  A 
plaintiff  in  detinue,  whose  title  to  the  property  sued  for  is  le- 
gally divested  before  the  trial  of  the  cause,  can  recover  noth- 
ing beyond  his  damages  for  its  detention  to  the  time  when  his 
title  was  divested,  and  the  costs  of  suitf 

Replevin.  —  The  action  of  detinue  has,  however,  fallen  into 
great  disuse,  and  in  some  of  the  States  of  the  Union  it  is  abol- 
ished by  statute,  t  I  proceed,  therefore,  to  the  action  of  re- 
plevin. And  this  action,  also,  has  been  so  much  altered  and 
modified  by  special  statutes,  that  it  will  only  be  proper  here  to 
treat  of  it  very  succinctly.  As  to  the  character  of  this  action, 
it  is  sufficient  to  state,  generally,  that  the  plaintiff  by  his  writ 
seizes  the  specific  property,  and  at  the  same  time  gives  a  bond 
with  proper  sureties,  conditioned  to  return  it,  or  its  value,  pro- 
vided it  shall  finally  appear  that  he  has  no  right  of  action.  The 
bond,  however,  is  only  a  cumulative  security  to  the  defendant ; 
and  if  the  plaintiff  fails  to  establish  his  right,  the  court  may  pro- 
ceed in  the  action  itself  to  award  damages  against  him,  as  the 
result  of  a  claim  declared  to  be  unfounded,  for  the  value  of  the 
property  taken  by  him.^ 

Tlie  nature  of  the  proceeding  is  well  and  briefly  stated  by 
Parsons,  C.  J. :  — 

"  The  plaintiff  having  by  the  service  of  the  writ  obtained  the  possession  of  the 
goods  replevied,  prosecutes  it  to  obtain  judgment  for  damages  and  costs  against 
the  defendant  for  the  caption  and  detention.  These  are  the  objects  of  his  suit. 
The  defendant  not  only  resists  the  plaintiffs  claim,  but  he  also  complains  of  an 
injury  arising  from  the  service  of  the  writ.  He  demands  back  the  chattels  with 
damages,  occasioned  by  the  replevin,  and  his  costs  in  the  defense The  dis- 

*  Williams  v.  Archer,  5  Man.   Gr.  &  Sc.        t  Cole  v.  Conolly,  16  Ala.  271. 
318.     See  Archer  v.  Williams,  2  Car.  &  Kir.         |  So  in  New  York,  by  Kevised    Statutes, 
26.  vol.  ii.  p.  553. 

1  The  essential  distinction  between  trover  and  replevin  as  regards  the  rnle  of  damages, 
aside  from  the  element  of  willfulness  in  the  taking  or  detention,  is  brietly  this.  In  trover,  the 
title  to  the  property  is  regarded  as  having  passed  to  the  defendant,  who  is  therefore  liable  for 
its  value  simply  with  interest.  In  replevin,  the  title  is  treated  as  still  in  the  plaintiff",  who  is 
therefore  to  recover  not  only  the  chattel  itself  or  its  value,  but  also  damages  fur  its  detention, 
of  which  interest  mav  be  the  measure,  but  is  not  in  all  cases  the  necessary  limit.  See 
McGavock  v.  Chamberlain,  20  111.  219. 
37 


678  RECOVERY    OF   SrECIFIC    PERSONAL   PROPERTY.  [CH.    XX. 

tinction  between  replevin  and  other  actions  in  which  the  plaintiff  demands 
["4991    a  debt  or  damages  or  lands,  is  very  clear,  because  the  magnitude  of  the 

debt  or  damages,  and  the  quantity  of  the  land,  is  involved  in  the  plaintiff's 
original  demand,  as  well  as  his  title  to  recover  anything.  But  in  replevin,  the 
demand  of  the  defendant  is  founded  on  the  legal  process  sued  and  prosecuted  by 
the  plaintiff."  * 

The  jury  must  find  the  value  of  the  property ;  and  in  Ar- 
kansas (during  the  existence  of  slavery),  in  replevin  for  slaves 
where  the  property  had  not  been  replevied  and  delivered  to  the 
plaintiff,  and  the  verdict  was  in  his  favor,  the  jury  found  the 
separate  value  of  each  slave,  or  a  venire  de  novo  was  awarded.!^ 

Early  English  Statutes.  —  In  this  action  the  plaintiff  had 
damages  at  common  law ;  and  by  the  statute  of  Gloucester, 
costs,  as  a  consequence  of  such  damage ;  but  the  avowant  or 
defendant  in  replevin  had  no  costs,  although  in  many  cases 
where  an  avowry  or  conusance  was  made,  and  a  return  prayed, 
the  defendant  was  an  actor.  %  In  consequence  of  this  hardship 
two  statutes  were  passed  §  giving  such  damages  and  costs  to 
the  defendant  as  the  plaintiff  would  have  had  at  common  law.  || 
These  statutes  have,  I  believe,  been  generally  reenacted  in  this 
country. 

Defendant's  Damages  and  Costs. — By  virtue  of  these  enact- 
ments, the  general  rule,  where  the  defendant  succeeds  and  has 
judgment  in  his  favor  for  a  return,  is  that  he  is  also  entitled  to 
damages ;  and  the  decrease  in  value  of  the  goods  since  the  time 
of  the  replevin,  with  interest  on  their  entire  value,  forms  the 
proper  measure  of  his  damages.  ^  So  the  defendant  is  entitled 
to  damages  for  deterioration  in  the  value  of  the  goods  from  the 
time  of  the  replevin,  although  it  be  not  pretended  that  the 
decrease  in  value  is  attributable  in  any  degree  to  the  act  or 
default  of  the  plaintiff.^ 

*  Bruce  v.  Learned,  4  Mass.  614,  617,  and  ||  James  v.  Tutney,  Cro.  Car.  497,  Easter 

618.  Term,  case  2;    Rowley  v.   Gibbs,   14  Johns. 

t  Noland  v.  Leech,  5  English,  504.  Rep.  385  ;  Caldwell  v.  West,  1  Zabriskie,  411. 

X  Bacon  Abr.   Costs,  F.   of    Costs  in  Re-  IT  Rowley  v.  Gibbs,  14  J.  R.  385  ;  Brizsee 

plevin.  V.  Maybee,  21  Wend.  144. 

§  7  Hen.  VIII.  cap.  4,  and  21  Hen.  VIII. 
cap.  19. 

\.  1  So  where  the  property  cannot  be  returned  the  analogy  of  trover  is  followed,  and  the 
measure  is  its  value  at  the  time  of  the  conversion.  Garrett  v.  Wood,  3  Kansas,  231.  Where 
there  is  no  evidence  as  to  the  value,  nominal  damages  only  can  be  recovered.  Phenix  u. 
Clark,  2  Gibbs  (Mich.),  327.  But  in  Texas,  in  an  action  for  the  recovery  of  specific  property 
or  its  value,  a  valuation  by  the  jury  higher  than  the  evidence  waiTanted,  with  the  view  of  in- 
ducing a  surrender  of  the  property,  was  sustained.  Cochrane  v.  Winburn,  13  Tex.  143. 
'^  And  e  converso  in  replevin  for  a  yacht,  a  defendant  who  claimed  her  under  a  purchase  was 


CIT.    XX.]  REPLEVIN.  579 

Destruction  of  Property  before  Pai'ivient.  —  In  a  case  in  New 
York,  it  was  decided  in  a  suit  on  the  replevin  bond,  that  the 
non-i"eturn  of  tlie  property  was  excused  by  its  inevitaljle  destruc- 
tion before  judgment.*  This  decision  was  based  on  the  old  rule 
that  if  the  condition  of  a  bond  become  impossible  by  the 
act  of  God,  the  penalty  is  saved.f  But  it  seems  contrary  [500] 
to  principle,  and  has  been  expressly  disapproved  off  As 
between  parties  to  a  contract,  it  seems  very  reasonable  that  all 
interested  in  its  execution  should  bow  to  the  superior  power 
which  renders  its  jDcrformance  impossible.  But  it  cannot  be 
tolerated  that  a  wrong-doer  should  be  excused  by  any  subse- 
quent accident.  Nor  do  the  analogies  of  the  law  justify  any 
such  decision.  In  trover  or  trespass  for  goods  after  the  conver- 
sion or  trespass  was  complete,  the  party  in  fault  would  certainly 
never  be  admitted  to  excuse  himself  by  alleging  that  the  prop- 
erty had  perished  in  his  hands  without  his  fault.  The  court 
appears  rather  to  have  looked  to  the  technical  form  of  the  action 
than  to  the  substantial  justice  of  the  case. 

Valuation.  —  In  an  action  of  debt  on  a  replevin  bond,  in 
Massachusetts,  the  original  plaintiffs  having  been  defeated,  but 
refusing  to  restore  the  goods  on  the  writ  of  restitution,  the 
question  was  considered,  whether  the  value  of  the  goods  should 
be  computed  —  at  the  valuation  in  the  replevin  bond ;  the  actual 
value  of  the  property  at  the  time  of  the  service  of  the  replevin 
writ ;  at  the  time  of  the  verdict  rendered ;  or  at  the  time  of  the 
demand  made  luider  the  writ  of  restitution ;  it  seems  from  the 
report  that  the  property  at  the  time  was  still  in  the  possession 
of  the  defendant ;  and  the  latter  was  held  the  true  rule.  § 

Interest  allowed  Defendant.  —  In  the  same  State,  also,  inter- 
est is  allowed  the  defendant  on  the  value. ||  ^     But  where  the 

*  Carpenter  v.  Stevens,  12  Wend.  589.  case  commented  on  in  Suydam  v.  Jenkins,  3 

t  Black.  Com.  b.  2,  ch.  20.  Sandford  S.  C.  R.  614.     In  Maine,  see  Howe 

I  Suydam  v.  Jenkins,  3  Sandford  Sup.  Ct.  v.  Handley,  28  Maine  R.  241. 

E.  614.  II  Wood  V.  Braynard,  9  Pick.  322. 
§  Swift  V.  Barnes,  16  Pick.  194.     See  this 


allowed  in  Massachusetts  to  show  the  amount  of  his  expenditures  in  improving  her  after  his 
purchase  and  before  the  service  of  the  writ.     Veazie  v.  Somerby,  5  Allen,  280. 

1  This  accords  with  the  American  principle  as  to  the  allowance  of  interest,  and  is  the  gen- 
eral rule.  Woodburn  v.  Cogdal,  39  Mo.  222.  It  is  to  be  observed,  however,  that  the  Massa- 
chusetts rule  is  only  applicable  in  cases  where  the  defendant  can  show  actual  loss.  Therefore, 
if  it  appears  that  the  defendant  claims  no  jiroperty  in  the  re])levicd  goods,  or  that  the  goods 
are  not  adapted  to  use  and  enjoyment,  nominal  damages  only  can  bo  recovered.  Bartlett  v. 
Brickett,  14  Allen,  62.  In  Indiana  it  seems  that  the  discretionary  rule  still  prevails.  It  is 
there  said  that  interest  on  the  value  of  the  pro])erty  nuiy  be  allowed  by  way  of  damages  in  an 
action  on  the  replevin  bond.     Walls  v.  Johnson,  16  lud.  374. 


580         RECOVERY  OF  SPECIFIC  PERSONAL  PROPERTY.     [CH.  XX. 

goods  attached  were  subject  to  duties,  and  the  plaintiff  paid 
them,  it  was  held  in  an  action  on  the  replevin  bond,  that  the 
interest  should  be  computed  only  on  the  difference  between  the 
amount  so  paid,  and  the  valuation  in  the  writ  of  replevin.* 

The  Plaintiff  is  Bound  by  the  Valuation  in  the  Writ.  — This 
is  a  correct  application  of  the  original  doctrine  of  recoupment. 
It  ajDpears  here,  that  the  valuation  in  the  original  writ  was 
adopted,  instead  of  the  actual  value  of  the  goods ;  and  it  has 
been  also  so  held  in  England,  on  the  sound  principle,  that  the 
plaintiff  in  the  replevin  suit  is  bound  by  the  estimate  of  the 
property  made  by  himself  t 

[501]  Cases  of  Increase  in  the  Value  of  the  Property. — These 
damages  are,  it  will  be  observed,  only  damages  for  the 
delention  of  the  property,^  and  apply  to  cases  where  the  property 
has  not  altered  in  value,  or  has  deteriorated.  But  where  the 
property  has  risen  during  the  pendency  of  the  proceedings, 
another  principle  is  applied.  Under  the  judgment  for  a  return, 
the  defendant  is  entitled  to  recover  the  value  of  the  property ;  ^ 
and  here  the  same  question  arises,  although  it  is  sometimes  pre- 
sented in  a  distinct  suit  on  the  replevin  bond,  which  we  have 
already  examined  in  the  action  of  trover,  as  to  the  time  when 
the  value  should  be  computed :  whether  at  the  time  of  the  re- 
plevin, or  the  highest  price  down  to  the  time  of  the  trial.  It 
has  been  suggested  in  New  York,  %  that  the  former  period  is  to 
furnish  the  rule.  But  this  must,  I  think,  "be  taken  with  many 
modifications. §  ^ 

Modifications  of  the  General  Rule  where  the  Defendant  has  a 
Special  Property  only.  —  So  this  rule  in  regard  to  the  value  of 
the  property  is  also  modified  where  the  defendant  has  only  a 
special  property  in  it ;  *  for  if  the  value  exceed  his  demand,  and 

*  Hiiggeford  v.  Ford,   11   Pick.  223.     See        }  Brizsee  d.  Maybee,  21  Wend.  144. 
also,  Mattoon  v.  Pearce,  12  Mass.  406.  §  See  Suydam  v.  Jenkins,  3  Sandf.  614. 

t  Middleton  v.  Bryan,  3  Maule  &  SeL  155. 

1  Where  the  chattel  is  not  returned,  the  damages  must  cover  its  value  as  well  as  the  injury 
done  bv  the  detention.     Frazier  v.  Fredericks,  4  Zabr.  (N.  J.)  162. 

-  Lutes  V.  Aljjaugh,  3  Zabr.  (N.  J.)  165;  Woodburn  v.  Cogdal,  39  Mo.  222. 
'^  Supra,  481,  note  1. 

*  "  If  the  defendant,  in  the  assertion  and  vindication  of  his  supposed  rights,  and  not  for 
fraudulent  purposes,  or  as  a  mere  stranger,  replevied  the  property,  tlae  measure  of  damages  in 
this  action  is  not  necessarily  the  value  of  the  property,  but  the  extent  of  the  plaintift''s  injury 

by  being  depi'ived  of  such  right  as  he  in  fact  had  in  it  when  it  should  have  been  returned 

The  true  question  is,  what  has  the  plaintiff  lost,  or  to  what  amount  is  he  injured  by  the  failure 
of  the  defendant  to  return  the  projjerty  1  and  to  determine  this,  it  is  material  to  know  the 
e.xtent  of  his  interest."  Warner  v.  Matthews,  18  111.  82.  So  in  New  York,  under  the  Revised 
Statutes  and  the  present  Code  of  Procedure,  where  the  interest  of  the  party  entitled  to  the 


CH.    XX.]  EXEMPLARY    DAMAGES    IN    REPLEVIN.  581 

he  takes  a  verdict  for  the  entire  value,  he  will  be  liable  to  the 
plaintift'for  the  excess.*  And  on  the  same  principle^  if  property 
be  replevied  from  a  sheriff  holding  it  under  execution,  and  who 
has  no  other  interest  in  it  than  that  of  the  creditor  whom  he 
represents,  if  the  issue  be  found  for  the  defendant  and  the  value 
of  the  property  be  greater  than  the  amount  of  the  execution, 
the  rule  of  chimages  is  the  amount  of  the  execution  with  interest 
and  the  costs  thereon ;  ^  but  if  the  value  of  the  property  be  less 
than  the  execution,  then  the  rule  of  damages  is  the  full  value  of 
the  property.!  It  will  be  observed  that  the  analogy  of  trover 
is  here  followed  ;  for  in  that  form  of  action  if  the  plaintiff  claims 
by  virtue  of  a  lien,  he  recovers  only  to  the  extent  of  his  lien, 
provided  always  that  the  action  is  not  against  a  mere  stran- 
ger.^ 

Exemplary  Damages  in  Replevin.  —  In  New  York  and  Penn- 
sylvania, it  has  been  declared,  that  if  the  writ  be  sued 
out  fraudulently,  vexatiously,  or  maliciously,  or  the  de-  [502] 
fendant's  proceedings  be  of  the  same  character,  the  jury 

*  Scrugham  v.  Carter,  12  Wend.  131.  t  Jennings  v.  Johnson,  17  Ohio,  154. 

possession  is  less  than  the  value  of  the  property,  to  avoid  circuity  of  action,  the  practice  has 
long  prevailed  to  direct  the  jury  to  assess  the  value  as  against  the  actual  owner  only  at  a  sum 
which  would  be  equivalent  to  such  limited  interest.  Rhoads  v.  Woods,  41  Barb.  471 ;  Pitzhugh 
V.  Wiman,  9  N.  Y.  (5  Seld.)  559  ;  Seaman  v.  Luce,  23  Barb.  240.  So  in  Indiana,  under  the 
provisions  of  2  Revised  Statutes,  124  and  374  —  which  enact  that,  in  an  action  of  replevin, 
where  the  property  has  been  delivered  to  the  plaintiff,  judgment  for  defendant  may  be  for  a 
return  of  the  property,  or  its  value  if  a  return  cannot  be  had,  and  damages  for  the  taking  and 
withholding —  the  amount  of  damage  in  such  case  depends  on  the  value  of  defendant's  interest 
in  the  property  ;  whether  he  holds  as  absolute  owner,  or  otherwise.  Noble  v.  Epperly,  6  Ind. 
R.  468.  Where,  under  an  agreement  between  one  Bitley  and  the  defendant,  the  defendant 
was  to  buy,  as  Bitley's  agent,  certain  timber  standing,  and  to  cut  it  and  deliver  it  to  him  at 
Troy  at  ten  and  a  half  cents  per  cubic  foot,  and  Bitley  made  a  payment  to  the  defendant  on 
account  of  this  contract,  and  out  of  the  money  thus  received  from  Bitley,  the  defendant  paid 
the  original  owner  for  the  timber,  the  defendant  was  held  to  have  a  special  property  in  it  to 
the  extent  of  ten  and  a  half  cents  a  cubic  foot,  less  the  expense  of  getting  it  to  Troy,  to 
which  extent  the  plaintiff  was  entitled  to  recover.  Weaver  v.  Darby,  42  Barb.  411.  In  an 
action  on  the  replevin  bond  where  the  person  for  whose  benefit  it  is  made  is  merely  entitled  to 
the  possession  of  the  property,  the  title  to  which  is  in  the  opposite  party,  it  is  erroneous  to 
allow  judgment  for  the  value  of  the  property.  Hawley  v.  Warner,  12  Iowa,  42.  Where  the 
action  is  Drought  by  one  entitled  to  the  possession  only,  and  not  the  owner  of  the  legal  title, 
the  measure  of  his  damages  will  be  the  extent  of  the  interference  with  his  right  of  possession. 
Cumberland  Coal  &  Iron  Co.  v.  Tilghman,  13  Md.  74. 

And  in  an  action  on  the  replevin  bond  by  the  defendant,  who  has  had  judgment  in  his 
favor,  in  the  replevin  suit,  although  the  defendant  in  the  second  suit  cannot  show  in  mitigation 
of  damages  that  the  title  to  the  jiroperty  was  in  himself,  this  issue  having  been  determined  in 
the  first  suit,  he  can  show  in  mitigation,  nevertheless,  that  his  adversary's  title  was  of  short 
duration,  and  was  terminated  soon  after  the  judgment  in  the  former  suit.     Ibid. 

1  And  in  such  case,  if  the  execution  be  partly  satisfied,  the  amount  still  due,  with  the 
interest  and  costs,  will  be  the  measure.     Hayden  v.  Anderson,  17  Iowa,  158. 

'■'  Ante,  482.  And,  on  the  other  hand,  where  the  action  is  brought  by  a  mere  stranger,  the 
same  analogy  is  followed,  and  if  the  plaintiff  fail  in  the  action,  the  defendant,  though  having 
a  special  interest  onlv,  is  entitled  to  recover  the  entire  value  of  the  property  taken.  Fallon  v. 
Manning,  35  Mo.  271  ;  Frei  v.  Vogel,  40  Ibid.  149. 


582  RECOVERY    OF    SPECIFIC    PERSONAL    PROPERTY.  [CH.    XX. 

may  give  exemplary  damages  against  either  plaintiff  or  defend- 
ant, as  is  cases  of  willful  trespass.*  ^ 

Mitigation  of  Defendant's  Damages.  —  And  on  the  other 
hand,  it  is  competent  for  the  plaintiff  to  show  in  mitigation  that 
shortly  after  the  delivery  of  the  property  to  him,  the  defendants 
repossessed  themselves  of  the  greater  part  of  it ;  f  the  Supreme 
Court  of  New  York  saying,  that  the  action  being  in  many  cases 
a  substitute  for  trespass  de  honis  asjyortatis,  the  rule  of  mitigation 
in  that  action  was  strictly  applicable. 

And  so  in  Iowa  and  Maryland,  it  has  been  decided  that  the 
plaintiff,  though  nonsuited,  may  still  offer  testimony  to  prove 
ownership  of  property  in  himself,  upon  inquiry  into  the  right  of 
the  defendant's  possession,  in  order  to  show  that  the  defendant 
would  have  sustained  no  substantial  damage  as  he  was  not  the 
owner  of  the  property .$ 

Plaintiff's  Damages.  —  Thus  much  of  the  defendant.  As  to 
the  damages  recoverable  by  the  plaintiff,  they  are  for  the  de- 
tention of  the  property,  of  which  interest  on  its  value  is  ordina- 
rily the  measure.  He  is  also  entitled  to  compensation  for  any 
deterioration  in  value  of  the  goods  replevied  while  they  were  in 
the  hands  of  the  defendant  ;§^  but  the  plaintiff  who  retains  the 
articles  replevied  till  judgment  in  the  suit,  cannot,  if  he  succeed, 
claim  damages  for  the  depreciation  in  their  value ;  because  he 
may  always  convert  them  into  money.  ||  ^ 

Special  Damages.  —  It  has  been  intimated,  in  Massachusetts, 
that  if  special  damage  were  shown  to  have  been  suffered  by  the 

*  Cabel  y.  Dankin,  20  Wend.  172  ;  McDon-  if  the  plaintiff  recover,  he  shall  in  like  man- 
aid  V.  Scaife,  11  Penn.  R.  381  ;  Brizsee  v.  ner  recover  damages  for  the  detention  of  the 
Maybee,  21  Wend.  144.  goods  and  chattels.  An  effort  was  made  un- 
t  Dewitt  V.  Morris  13  Wend.  496.  der  this  statute  to  obtain  for  the  defendant 
{  Hai'man  v.  Goodrich,  1  Greene  (Iowa),  in  rej)levin,  an  allowance  for  his  counsel  fees 
13 ;  Bell  v.  Worthington,  3  Gill  &  Johnson,  and  time  lost  in  attendance  on  court  in  the 
247.  In  Lidiana,  when  the  replevin  bond  is  replevin  suit ;  but  it  was  denied.  Davis  v. 
forfeited,  the  statute  authorizes  the  defendant  Crow,  7  Blackf.  129. 
(in  replevin)  to  recover,  in  a  suit  on  the  bond,  §  Rowley  v.  Gibbs,  14  J.  R.  385. 
such  sum  as  shall  be  just  and  equitable;  and  ||  Gordon  v.  Jenney,  16  Mass.  465. 

1  McDonald  v.  Scaife,  11  Penn.  St,  381 ;  Schofield  v.  Ferrers,  46  Penn.  St.  438.  It  seems 
otherwise  in  this  action  in  Elinois  and  Indiana.  Butler  v.  Mehrling,  15  III.  488  ;  Hotchkiss  v. 
Jones,  4  Ind.  260. 

'^  It  is  unimportant  whether  such  depreciation  arise  fi'om  the  defendant's  act  or  default,  or 
not.  Young  v.  Willett,  8  Bosw.  (N.  Y.)  486.  Nor  need  there  be  a  special  averment  of  this 
cause  of  damage  to  sustain  a  recovery  on  this  ground.     Ibid. 

"  In  Pennsylvania,  if  the  taking  is  bond  fide,  the  defendant  is  allowed  whatever  value  liis 
labor  has  actually  conferred  upon  the  property.     Herdie  v.  l''oung,  55  Penn.  176. 


CII.    XX.]  mTIGATION    OF   PLAINTIFF'S   DAMAGES.  583 

defendant,  it  might  be  allowed* ^  And  it  has  been  held  in  the 
analogous  action  of  case  for  taking  personal  property,  that  the 
plaintilf  was  entitled  to  recover  for  his  time  and  expenses  in- 
curred in  pursuit  of  the  property,!  and  in  Maryland  for 
hire  of  slaves.t  In  Texas  it  has  been  said,  "  that  where  [503] 
the  suit  is  brought  to  recover  the  specific  property  and 
damages  for  its  detention,  if  the  property  sued  for  be  a  slave, 
damages  for  the  hire  should  be  computed  from  the  time  of  the 
demand  to  the  rendition  of  the  judgment ;  if  no  special  demand 
is  proven,  the  service  of  the  writ  is  the  time  from  which  the 
damages  should  be  computed."  §^  Where  the  plaintiff  has  Ijut 
a  life  interest,  as  in  slaves,  the  verdict  cannot  be  for  more  than 
the  value  of  such  interest.] | 

Reciprocal  D.-uiages.  —  It  is  the  peculiarity  of  this  action, 
that  both  parties  may  be  actors,  and  so  if  it  is  found  that  a 
part  of  the  property  claimed  is  the  plaintiff's,  and  a  part  not, 
both  plaintiff  and  defendant  may  recover  damages  against  each 
other.  ^ 

Mitigation  of  Plaintiff's  Damages.  —  As  to  mitigation  of 
the  plaintiffs  damages,  it  has  been  held  that  in  a  suit  on  the 
replevin  bond,  the  defendant  may  show  that  the  plaintiff  had 
no  title  to  the  property,  on  the  ground  that  the  decision  of  the 
replevin  suit  might  not  be  necessarily  conclusive  upon  that 
question.*  *  ^ 

Analogy  of  other  Actions  at  Law  concerning  Chattels.  — 
The  subject  of  this  chapter  is,  as  I  have  said,  very  much  under 

*  Barnes  v.  Bartlett,  15  Pick.  71.  §  Bobbins,  Adm'r,  v.  Walters,  2  Texas  R. 

t  Bennett    v.  Lockwood,   20   Wend.   223 ;     130. 
Morris  on  Replevin,  139.  ||  Lloyd  v.  Goodwin,  12  Smedes  &  M.  223. 

J  Dorsey  v.  Gassaway,  2  Har.  &  J.  413.  i[  Powell  v.  Hinsdale,  5  Mass.  343. 

**  Wallace  v.  Clark,  7  Blackf.  298. 

1  See  Stevenson  v.  Smith,  28  Cal.  102.  In  New  York,  the  right  of  recovering  special  dam- 
ages in  this  action  has  been  doubted.  Brizsee  v.  Maybee,  21  Wend.  144;  although  if  the 
analogy  of  trover  be  followed,  they  would  probably  now  be  allowed  to  a  limited  extent.  See 
McDonald  v.  North,  47  Barb.  530  ;  a?>fe,  476,  note. 

'^  See  ante,  475.  In  Illinois,  in  addition  to  the  value  of  the  property,  a  reasonable  compen- 
sation for  its  use,  without,  however,  any  allowance  for  speculative  profits,  is  recoverable. 
Butler  V.  Mehrling,  15  111.  488. 

8  In  the  action  in  the  replevin  bond,  it  may  be  shown  in  mitigation  of  damages  that  the 
action  of  replevin  failed  merely  because  it  was  prematvxrely  brought.  Davis  v.  Harding,  3 
Allen,  302.  And  in  such  an  action  brought  in  the  name  of  one  of  several  owners  by  whom 
the  replevied  ])ro])erty  was  owned  in  common,  the  measure  of  damages  was  the  value  of  that 
one's  interest.     Bartlett  v.  Kidder,  14  Gray,  449. 

It  has  been  held  that  where  the  goods  have  been  delivered  and  accepted,  pending  the  suit, 
only  nominal  damages  can  be  given,  iinless,  perhaps,  plaintiff  may  sometimes  have  interest  on 
the  value.     Conroy  v.  Flint,  5  Cal.  327. 


584  RECOVERY    OF    SPECIFIC    PERSONAL    PROPERTY.  [CH.    XX. 

the  control  of  special  statutes ;  and  where  those  statutes,  or  the 
decisions  founded  on  them,  do  not  apply,  a  reasonable  rule  may 
generally  be  deduced  from  the  analogous  cases  decided  upon  the 
actions  of  trover,  trespass  de  honis  asportatis,  case  for  injury  to 
personal  property,  and  on  sales  of  chattels.* 

Sequestration  Proceeding  in  Louisiana.  —  In  Louisiana,  pro- 
ceeding by  sequestration  is  strongly  analogous  to  the  replevin 
or  attachment  of  the  common  law,  and  the  party  plaintiff  gives 
a  bond  with  sureties  "  to  pay  all  damages  that  may  accrue  in 
case  it  shall  appear  the  sequestration  was  wrongfully  sued  out." 
In  a  suit  on  such  a  bond  it  has  been  decided  in  that  State  that 
the  judgment  in  the  original  sequestration  proceeding  is  con- 
clusive of  the  question  of  property  against  the  sureties  to  the 

sequestration  bond,  and  that  the  counsel  fees  of  the  first 
[504]    suit  can  be  recovered  on  such  bond ;   nor  is  it  material 

to  show  that  such  fees  have  been  actually  paid :  it  is 
enough  that  the  plaintiff  has  incurred  a  liability  for  them.f 

*  The  sureties  in  a  replevin  bond  are  to-  In   Kentucky,  a  plea  in  replevin  alleging 

gether  liable  only  to  the  amoixnt  of  the  penalty  property   in    a  stranger    is  good.     Scott    v 

in  the  bond,  and  the  costs  of  the  suit  upon  the  Hughes,  9  B.  Monroe,  104. 

bond.     Hefford  v.  Alger,  1  Taunt.  218.  t  Jones  v.  Doles,  3  La.  Ann.  R.  588. 


CHAPTER   XXI. 

THE   MEASURE    OF   DAMAGES    IN    ACTIONS    AGAINST    SHERIFFS    AND    OTHER 
PUBLIC    OFFICERS,    AND    THEIR    SURETIES. 

In  Actions  of  Case  or  Trespass,  against  Public  Officers,  the  Rule  of  Damages  is 
usually  a  Question  of  Law.  —  The  General  Rule  is  the  Injury  actually  sus- 
tained by  the  Plaintiff.  —  On  whom  does  the  Proof  of  Damage  rest  ?  —  Cases 
examined.  —  In  America,  the  Debt  due  the  Flaintiff  is  jjrimd  facie  the  Meas- 
ure of  Damages.  —  If  Aggravation  is  shown,  the  Jury  may  give  Exemplary 
Damages.  —  Mitigation.  —  Suits  against  Collectors  of  Customs.  —  Suits  against 
Sureties  of  Public  Officers. 

The  Measure  of  Eelief  is  a  Question  of  Law,  except  where 
Aggravation  is  proved.  —  Having  disposed  of  the  actions  of 
trover  and  replevin,  we  now  approach  the  great  head  of  Case, 
of  which  assumpsit  is  only  a  branch,  and  some  other  subdivisions 
of  which  we  have  already  considered.  I  shall,  adhering  to  the 
line  of  demarkation  already  adopted,  treat  first  of  those  applica- 
tions of  the  action,  where  no  circumstances  of  aggravation  are 
relied  on ;  reserving  for  our  ultimate  consideration  those  where 
the  evil  motive  of  the  defendant  forms  a  substantial  g-round  of 
complaint.  We  have  already  *  had  occasion  to  notice,  that  in 
actions  against  private  agents  the  law  affords  two  remedies :  one 
ex  contractu,  upon  the  contract ;  and  the  other,  ex  delicto,  for  the 
violation  of  duty ;  but  that  in  both  these  cases,  the  measure  of 
relief  is  a  question  under  the  entire  control  of  the  court,  unless 
where  the  latter  proceeding  is  adopted,  and  circumstances  of 
aggravation  are  proved.  We  shall  find  the  same  general  prin- 
ciple to  hold  good  in  regard  to  the  actions  which  we  are  now 
about  to  consider. 

Trespass    and    Case.  —  We  have   also,  when   discussing  the 
subject  of  remote  and  consequential  damages,  had  occasion  to 
notice  the  distinction  between  trespass    and    case  ;    the 
former  being  originally  used  where  the  injury  was  direct,  [506] 
the  latter  where  consequential.     But  the  fine  of  division 
between  case  and  trespass  is  often  so  faint  and  difficult  of  deliu- 

*  Ante,  335. 


586  SUITS    AGAINST    PUBLIC    OFFICERS.  [CH.    XXI. 

eation,  that  it  will  be  better  for  our  present  purpose  to  consider 
rather  the  object  of  the  suit  than  the  form  of  the  action.*  Be- 
fore examining  the  subject  of  trespasses  or  wrongs  generally,  we 
shall  consider  that  class  of  cases  which  arise  out  of  the  acts  of 
the  public  officers  who  are  charged  with  the  ministerial  2:)ortion 
of  the  administration  of  justice. 

Ministerial  Officers  are  Responsible  to  those  Injured  by 
THEIR  Violations  of  Duty.  —  It  is  well  settled  under  the  English 
system,  that  sheriffs  and  other  ministerial  officers,  in  case  of 
neglect  or  violation  of  duty,  are  responsible  to  the  party  ag- 
grieved in  a  civil  action.^  The  mode  prescribed  is  usually  one 
of  the  great  class  of  actions  on  the  case  ;  but  the  proceeding 
often  takes  the  form  of  trespass.  To  this  general  remedy,  which 
flows  from  the  principles  of  the  common  law,  is  frequently  su- 
peradded some  special  statutory  relief,  enforced  by  some  par- 
ticular penalty  ;  but  the  addition  of  such  particular  remedy  does 
not  interfere  in  any  way  with  the  right  of  the  party  to  his  com- 
pensation for  the  actual  injury  done  in  a  suit  of  trespass,  or  on 
the  case. 

The  Actual  Injury  Furnishes  the  General  Rule.  —  The  or- 
dinary cases  in  which  the  questions  arise  which  we  are  now 
about  to  examine,  are  presented  in  suits  against  sheriffs,  or  other 
ministerial  officers,  either  for  negligence,  as  the  escape  of  par- 
ties arrested  on  mesne  or  final  process,  for  taking  insufficient 
security,  for  neglect  to  seize  or  preserve  property  on  execution ; 
or  omission  to  make  a  true  return  to  the  writ ;  or  on  the  other 
hand,  for  an  excess  of  their  powers,  as  for  levying  upon  property 
which  they  are  not  authorized  to  by  the  process,  excessive  dis- 
tress, etc.  And  in  these  cases  we  shall  find  the  general  principle 
to  be,  although  the  form  of  the  action  be  in  tort,  that  the  party 
aggrieved  is  entitled,  independent  of  any  statutory  relief,  to  re- 
cover only  to  the  extent  of  his  actual  injury. 

*  As  a  general  principle,  it  is  well  settled  tions  thereof,  or  for  neglect  in  not  conforming 

in  regard  to  all  public  officers,  that  although  to  its  requirements,  whereby  individuals  are 

created  by  statute,  and  although  liable  to  the  injured,  they  are  not  in  consequence  thereof 

infliction  of  penalties  for  violation  of  official  deprived  of  the  remedy  which  would  exist  if 

duty,  they  are  still  equally  responsible  to  the  no  penalties  wei'c  prescribed."     Hayes  v.  Por- 

aggrieved   party,  in  an  action   on   the  case,  ter,  22  Maine  11.  371  ;  Beckford  v.  Hood,  7  T. 

"  Where  the  law,"  says  the  Supreme  Court  of  R.  620  ;  Farmers'  Turnpike  Co.  v.  Coventry, 

Maine,  "  has  affixed  forfeitures  for  the  infrac-  10  Johns.  R.  389. 


1  Clark  V.  Miller,  47  Barb.  (N.  Y.)  38.  Public  officers,  however,  vested  by  law  with  discre- 
tioTgiry  authority,  aiid  acting  within  its  scope,  are  not  answerable  in  damages  for  the  conse- 
quences of  their  acts^  unless  done  maliciously  and  with  intent  to  injure.  Burton  v.  Fulton,  49 
Penn.  St.  151. 


CII.    XX.]  THE    GENERAL    RULE.  587 

"  It  is  not  correct,"  however,  says  the  Supreme  Court  [507] 
of  Vermont,  to  hold  "  that  in  actions  of  trespass  for  tak- 
ing personal  property,  when  the  defendant  is  an  officer  acting 
under  legal  process,  no  damages  can  in  any  case  be  recovered 
bej'ond  the  actual  value  of  the  property.  Courts  usually  in 
such  cases  instruct  the  jury  that  they  ought  to  confine  them- 
selves within  those  limits.  It  is  a  rule  of  practice  merely.  Cir- 
cumstances may  require  a  departure  from  it."  *  ^ 

Modifications  of  the  General  Principle.  —  The  rule  is,  indeed, 
subject  to  many  modifications ;  partly  arising  from  the  vague- 
ness that  we  have  often  had  occasion  to  notice  in  the  early 
cases;!  partly  from  the  variety  of  the  forms  of  action  em- 
ployed ;  and  partly  from  the  application  of  the  rules  of  evi- 
dence ;  and  partly  from  the  general  principle  that  in  actions  of 
tort  the  intent,  disposition,  and  conduct  of  the  defendant  always 
bear  largely  on  the  question  of  damages.^  And  these  various 
questions  we  shall  better  understand  by  an  examination  of  the 
cases. 

As  a  general  rule,  however,  it  is  settled,  as  I  have  said,  that 
the  measure  of  damages  in  suits  of  this  class  brought  against  a 
public  officer  by  a  creditor  plaintiff,  whose  remedy  against  his 
debtor  has  been  impaired  by  the  neglect  or  other  misconduct  of 
the  officer,  is  the  actual  injury  sustained,  this  actual  in- 
jury being  measured  by  the  amount  of  the  original  debt  [508] 
due  the  plaintiff,  or  the  value  of  the  property,  and  which 
has  been  lost  or  prejudiced  by  the  neglect  of  the  officer.^ 

*  Joyal  V.  Barney,  20  Verm.  154.  to  have  been  tried  before  Lord  Camden,  C.  J. ; 
t  Ravenscroft  v.  Eyles,  Warden  of  the  Fleet,  that  it  was  proved  at  the  trial  that  the  debt 
is  very  stronjr  to  show  the  power  which  the  was  sperate ;  and  that  on  the  argnment,  Ba- 
courts  orij;inally  gave  in  these  cases  to  the  jury,  thurst,  J.,  said,  "  Whether  the  debt  was  sperate 
2  Wils.  295  (1766).  It  was  case  for  a  volun-  or  not,  I  take  it  to  be  a  settled  point,  if  the 
tary  escape  ;  and  the  question  being  whether  escape  is  a  voluntary  one,  that  it  is  the  duty  of 
the  action  lay,  the  debtor  having  returned  to  the  jury  to  assess  damages  to  the  amount  of 
custody  before  suit  brought,  and  judgment  the  whole  debt."  But  by  the  report  in  2 
having  been  recovered  against  him,  Lord  C.  AVilson,  above  cited,  no  such  point  was  made 
J.  AVihnot  said,  "  The  quantum  of  damages  is  before  the  court  on  the  subject  of  damages, 
nothing  to  the  purpose ;  for  if  the  jury  had  In  Kent  v.  Kelway,  case  for  rescue  from 
power  in  this  case  to  give  damages,  we  must  arrest  (Lane  70  ;  Sayer  on  Damages,  55),  it  is 
now  take  it  that  they  have  done  right ;  and  I  said  that  damages  ma>/  he  recovered  to  the 
am  of  opinion  that  the  jury  were  not  contined  amount  of  the  debt  for  which  the  arrest  was. 
to  give  the  exact  damages  in  the  final  judg-  J  In  Bayley  v.  Bates,  8  J.  R.  185,  the  Su- 
ment,  but  h.ad  a  power  and  discretion  to  assess  preme  Court  of  New  York  said,  "  An  action 
what  damages  they  thought  proper ;  for  this  for  a  false  return  sounds  in  tort  and  fraud, 
beino  an  action  tqwn  the  case,  the  damages  were  and  it  draws  into  consideration,  in  a  greater 
totally  uncertain  and  at  lanje."  or  less  degree,  the  quo  uniino  of  the  defend- 
In  Sayer  on  Damages,  56,  this  case  is  stated  ant." 

1  See  Dobbs  v.  The  Justices,  &c.,  17  Ga.  624. 

2  Clark  V.  Miller,  47  Barb.  (N.  Y.)  ,38  ;  Hanmer  v.  Griffith,  1  Grant's  Cases  (Penn.),  193  ; 
Marshall  v.  Simpson,  13  La.  Ann.  437  ;  Bogel  v.  Bell,  15  La.  Ann.  163  ;  Blodgett  v.  Brattle- 
boro',  30  Vt.  (1  Shaw)  579  ;  Goodrich  v.  Foster,  20  N.  H.  177  ;  Phelps  v.  Owens,  11  Cal.  22  ; 


688  suits  against  public  officers.  [ch.  xxi. 

Notwithstanding  the  Proof  of  the  Debt  and  the  Sheriff's 
Neglect,  the  Inquiry  is  periviitted  whether  the  Debt  could 
HAVE  been  Collected.  —  The  original  debt  is  of  course  the  gist 


Beveridge  v.  Welch,  7  "Wis.  465 ;  Plnmmer  v.  Harbutt,  5  Clarke  (Iowa),  308  ;  Briggsu.  Gleason, 
29  Vt.  78  ;  Whitaker  v.  Sumner,  9  Pick.  308  ;  French  v.  Snyder,  30  111.  339  ;  Pelberg  v.  Gor- 
ham,  23  Cal.  349  :  Commonwealth  v.  Lightfoot,  7  B.  Mon.  298  ;  Ilogan  v.  Kellum,  13  Texas, 
396.  So  in  an  action  against  the  sheriff  for  wrongful  seizure  of  goods,  their  retail  value  cannot 
be  given  in  evidence,  as  it  includes  profits.  Nightingale  v.  Scannell,  18  Cal.  315.  And  dam- 
ages to  the  plaintiff 's  business  from  such  seizure  arc  not  to  be  taken  into  account.     Ibid. 

In  an  action  against  the  sheriff  for  neglect  to  levy  an  attachment,  or  levy  and  return  an  exe- 
cution, the  amount  of  the  judgment  or  execution,  or  so  much  thereof  as  the  value  of  the  prop- 
erty which  the  officer  neglected  to  attach  would  have  been  sufficient  to  satisfy,  is  the  measure. 
Bowman  v.  Cornell,  39  Barb.  (N.  Y.)  69 ;  Perkins  v.  Pitman,  34  N.  H.  261 ;  post,  516,  517. 
And  where  the  value  of  the  property  lost  by  the  neglect  of  the  sheriff  to  execute  the  attachment 
equals  or  exceeds  the  amount  of  the  plaintiff's  demand,  such  amount  becomes  the  measure  of 
damages  for  which  the  sheriff"  and  his  sureties  are  liable.  Smith  v.  Tooke,  20  Texas,  750. 
So  in  an  action  on  the  sheriff's  official  bond,  for  the  conversion  of  notes  taken  by  him  for  prop- 
erty sold  on  partition,  the  measure  is  the  value  of  the  notes.  Brobst  v.  Skillen,  16  Ohio  St. 
382. 

Interest  on  the  value  of  the  property  taken  by  the  sheriff,  from  the  time  it  was  taken  until 
its  restitution,  and  reasonable  compensation  for  the  depreciation  in  its  value,  if  any  there  was, 
is  the  legal  compensation  in  a  case  free  from  malice  or  vexatiousness  on  the  part  of  the  officer. 
Beveridge  v.  Welch,  7  Wis.  465.  And  where  there  is  no  restitution,  in  accordance  with  the 
American  doctrine  as  to  interest,  it  should  be  added  to  the  amount  of  the  debt  or  the  value  of 
the  property.  Hessing  v.  McClosky,  37  111.  341.  Where  a  sheriff,  without  the  direction  of  the 
creditors,  made  sales  of  property  on  credit,  on  some  of  which  sales  he  received  interest  before 
the  return-day  of  the  executions,  and  on  others,  the  purchasers  proved  insolvent,  he  was  held 
bound  to  account  to  the  creditors,  on  the  executions,  to  the  full  amount  of  the  sales,  but  not  for 
the  interest.     Chase  v.  Monroe,  10  Post.  (N.  H.)  427. 

Where  through  the  negligence  of  the  officer,  a  slave  arrested  by  him  for  a  criminal  offense 
escaped  and  was  drowned,  the  damages  recoverable  by  the  plaintiff,  who  had  but  a  life  estate 
in  the  slave,  was  limited  to  the  value  of  such  estate.     Tudor  v.  Lewis,  3  Mete.  (Ky.)  378. 

Where  goods  are  illegally  seized  by  the  sheriff  in  transitu,  the  measure  of  damages  is  anal- 
ogous to  that  in  the  case  of  a  carrier  failing  to  deliver,  and  is  said  to  be  their  value  at  the  place 
of  destination,  deducting  the  necessary  expenses  of  transportation  thither.  Eby  u.  Schumacher, 
29  Penn.  St.  40.  In  case  against  a  sheriff  for  illegally  selling  goods  lawfully  seized  and  held 
by  him,  and  which  had  deteriorated  without  his  default,  the  measure  of  damages  is  said  by  the 
Supreme  Court  of  Vermont  not  to  be  their  value  when  taken,  but  at  the  time  of  the  sale. 
Walker  v.  Wilmarth,  37  Vt.  289. 

The  sheriff  has  no  ground  for  objection  in  an  action  against  him  for  a  wrongful  attachment 
by  his  deputy,  to  an  instruction  to  the  jury  that  the  plaintiff"  is  entitled  to  recover  the  value  of 
such  property  exempt  from  attachment  as  was  attached  and  thereby  wholly  lost  to  him,  with 
interest  from  the  time  of  the  attachment.  And  if  the  plaintiff  thereby  lost  the  temporary  use 
only  of  such  property,  or  of  the  property  of  other  persons  to  the  use  of  which  he  was  entitled, 
then  he  should  recover  for  the  injury  from  such  loss  of  use.  Where  attached  property  was 
kept  in  the  plaintiff's  barn,  it  was  held  that  if  the  custody  of  it  had  been  such  as  wholly  or 
partially  to  exclude  him  fi-om  the  barn,  he  was  entitled  to  indemnity  for  such  loss  of  the  use  of 
the  barn,  so  far  as  it  was  not  occupied  by  the  attached  property.  But  where  the  plaintiff  occu- 
pied such  barn  under  a  lease,  in  which  he  had  covenanted  to  "  spend  or  consume  on  the 
premises  all  the  hay  or  other  fodder  "  produced  thereon  during  the  term,  he  could  not  recover 
from  the  sheriff  who  wrongfully  executed  an  attachment  obtained  by  the  lessor,  damages  for 
being  disabled  from  the  fulfillment  of  this  covenant,  since  the  plaintiff  could  not  be  answerable 
to  his  lessor  who  caused  the  attachment  for  not  performing  the  covenant.  Clapp  v.  Thomas, 
7  Allen,  188. 

It  is  held  in  Indiana,  that  on  a  sale  of  land  on  execution,  the  sheriff  is  bound  to  tendet  a 
deed  to  the  pixrchaser ;  and  where,  without  doing  so,  he  resells  for  omission  of  the  purchaser 
to  pay  the  purchase-money,  the  sheriff  is  himself  liable  to  the  execution  defendant  for  the 
amount  of  the  difference  between  the  two  sales.     The  State  i\  Lines,  4  Ind.  350. 

Attorneys.  —  Either  because  attorneys  are  a  very  faithful  class,  which  we  take  a  profes- 
sional pride  in  believing,  or  are  very  skillful  in  covering  the  tracks  of  any  devious  steps,  there 
are  few  reported  cases  of  actions  against  them  for  negligence  or  wrongs.  Such  decisions  as  there 
are,  commonly  turn  on  the  right  rather  than  the  measure  of  recovery  —  the  debt  lost  and  costs 
sustained  through  their  negligence  furnishing,  when  the  action  can  be  maintained,  the  obvious 
measure  of  damages,  where  this  measure  definitely  exists.     See  Langdon  v.  Godfrey,  4  F.  &  F. 


CH.    XXT.]  PUBLIC    POLICY.  589 

of  the  action,  find  it  is  perfectly  well  settled  that  the  existence 
of  such  debt  must  be  proved  by  the  plaintiff*  But  if  that  fact 
is  established,  the  equally  important  inquiry  remains,  whether 
the  recovery  of  the  debt  has  been  prejudiced  by  the  acts  of  the 
defendant.  In  other  words,  whether  under  any  circumstances 
it  could  have  been  collected  of  the  defendant's  property.  The 
question  sometimes  arises  on  mesne,  and  sometimes  on  final 
process. 

Actions  for  Escape.  —  In  England,  a  remedy  was  originally 
given  by  statute,  in  an  action  of  debt  against  the  sheriff  for  the 
escape  of  prisoners  charged  in  execution;  and  this  statute  has 
been  reenacted  to  some  extent  in  this  country.  But  under  it 
no  question  could  arise  as  to  the  measure  of  damages ;  for,  the 
action  being  debt,  and  the  provisions  of  the  statute  being  per- 
emptory, the  officer  was  charged  with  the  whole  amount  of  the 
plaintiff's  original  claim,  as  ascertained  by  his  judgment.  Our 
present  inquiry  is  directed  to  the  measure  of  damages  in  the 
action  on  the  case,  or  in  trespass.!  And  .the  only  remedy  that 
now  exists  in  England  against  a  sheriff  for  escape  on  final  pro- 
cess, is  an  action  on  the  case  for  such  damages  as  the  plaintiff 
may  have  sustained  by  reason  of  such  escape.^: 

When  a  prisoner  for  debt  makes  an  escape  §  (says  Lord  Kaims), 

*  Gunter  v.  Cleyton,  2  Lev.  85  ;  Alexander  for   the  debt.     §   63.     But   the  distinction   of 

i\  Macaulev,  4  T.  R.  611.  action  is  destroyed  by  the  Code  of  Procedure. 

t  Bonatous  v.  Walker,  2  T.  E.  126  ;  Raw-  [But  see  McCreery  v.  Willet,  23  How.  Pr.  R. 

son  V.  Dole,  2  J.  R.  454.     No  distinction  ex-  129,  affirming  S.  C.  4  Bosw.  643  ;  Renick  v. 

ists  in  New  York   as  to  mesne  process,  the  Orser,  4  Bosw.  384 ;  a?jte,  41,  note  1.  Ed.]    In 

statute  giving  the  remedy  against  the  sheritf  Massachusetts,  by  Rev.  Stat.  c.  97,  §  71,  the 

for   an   escape,   expressly  declaring  that   the  action  of  debt  for  escape  has  been  abolished. 

"  sheriff  shall  be  answerable  in  an  action  of  West  v.  Rice,  9  Met.  564. 

trespass  on  the  case  to  the  extent  of  the  dam-  |  5  &  6  Vict.  c.  98,  §  31  ;    Arden  v.  Good- 

ages  sustained  by  the  party  at  whose  suit  the  acre,  11  C.  B.  (2  J.  Scott)  371. 

prisoner  shall  have  been  committed."    2  R.  S.  §  Prin.  of  Equity,  book  i.  ch.  iv.  §  v.  ed.  of 

437,_§  62.     As  to  the  final  process,  however,  1767,  p.  159. 
if  aii  escape  takes  place,  the  sheriff  is  still  liable 

445  ;  Simmons  v.  Rose,  Re  Ward,  31  Beav.  1  ;  The  Governor  v.  Raley,  34  Ga.  173  ;  Nisbet  v. 
Lawson,  1  Ga.  275.  In  other  cases,  where  their  negligence  has  been  such  as  to  furnish  a  right 
of  action  against  them,  the  rule  of  damages  is  the  same  with  that  iii  like  actions  against  sheriffe. 
The  plaintift'is  entitled  to  be  in  the  same  position  as  if  the  attorney  had  dona  his  duty.  Ante, 
104,  105.  So  where  an  attorney  Avho  had  been  employed  to  complete  a  purchase  of  leasehold 
property  which  had  been  bought  at  auction  by  his  client  on  conditions  recpiiring  that  the 
purchaser  should  take  an  under  lease  and  not  demand  an  abstract  of  the  vendor's  title,  nor 
inquire  into  that  of  the  lessor,  made  no  inquiries,  but  simply  got  what  purported  to  be  a  lease 
executed  by  the  pretended  seller,  but  which  recited  no  title,  the  pretended  seller  having  none, 
and  the  purchaser  was  evicted  by  the  real  owner,  it  was  held  that  the  attorney  had  been  guilty 
of  negligence  for  which  his  estate  was  liable  in  damages,  the  proper  measure  of  which  was  the 
sum  which  the  plaintiff  (who  had  bought  back  the  property)  had  been  oliliged  to  pay  to  get  the 
title,  with  interest,  and  without  deduction  for  rent,  as  he  was  liable  over  for  mesne  profits  during 
the  time  he  had  occupied  the  premises  rent  free.  Allen  v.  Clark,  Ex'r,  7  L.  T.  R.  781,  (Q.  B.) ; 
11  W.  R.  304.  But  where,  owing  to  the  attorney's  neglect  to  charge  the  judgment  debtor  in 
execution  at  the  proper  time,  the  latter  was  discharged  by  supeisedeas,  there  being  evidence 
that  the  judgment  debtor  was  not  wholly  insolvent,  a  direction  to  the  jury  to  find  the  whole 
debt  was  held  erroneous,  and  their  verdict  for  that  amount  was  set  aside.  Russell  v.  Palmer, 
2  Wiis.  325. 


590  SUITS    AGAINST   PUBLIC    OFFICERS.  [ciI.    XXI. 

"  the  creditor  is  hurt  in  his  interest,  but  sustains  no  actual  dam- 
age ;  for  it  is  not  certain  that  he  could  have  recovered  his 
money  by  detaining  the  debtor  in  prison,  and  it  is  possible  he 
may  yet  recover  it,  notwithstanding  the  escape,  But  it  is  un- 
doubtedly a  hurt  or  prejudice,  to  be  deprived  of  his  ex- 
[509]  pectation  to  obtain  payment  by  the  imprisonment ;  and 
the  common  law  gives  reparation  by  making  the  negli- 
gent jailer  liable  for  the  debt,  precisely  as  equity  doth  in  similar 
cases.  A  messenger  who  neglects  to  put  a  caption  in  execution, 
affords  another  instance  of  the  same  kind."  This  appears,  Lord 
Kaims  observes,  to  be  the  infliction  of  uncertain  consequential 
damage. 

Burden  of  Proof.  —  It  is  an  important  question,  where  the 
breach  of  duty  is  clear,  on  whom  does  the  proof  of  damage 
rest  ?  Is  the  plaintiff  to  prove  that  he  is  damnified,  or  is  the 
oflicer  to  disprove  the  fact  ?  Our  law,  proceeding  on  a  prin- 
ciple of  evidence,  throws  the  burden  of  proof  on  the  negligent 
party,  and  assumes  that  the  plaintifl*  is  injured  until  the  con- 
trary appear.  It  might  be  urged  that  this  should  not  be  so, 
where  there  is  mere  ordinary  negligence  unaccompanied  by 
any  criminal  intention;  but  as  wdth  common  carriers,  so  with 
public  officers,  there  are  reasons  of  controlling  weight,  why  the 
party  to  wdiom  a  great  trust  is  confided,  and  in  whose  hands 
usually  all  the  testimony  must  be,  should  be  compelled  to  ex- 
culpate himself  after  a  prima  facie  case  of  negligence  is  made 
out  agrainst  him. 


"O" 


Disparity  between  English  and  American  Rule.  —  There  ap- 
pears, however,  to  be  a  discrepancy  on  this  point  between  the 
English  and  American  rule.  In  England,  it  would  seem, 
though  it  is  by  no  means  clear,  that  the  plaintiff'  must  show 
affirmatively  that  he  could  have  collected  his  debt  but  for  the 
negligence  of  the  defendant. 

The  earliest  case  on  this  subject,*  runs  thus:  "An  action 
upon  the  case  against  a  sheriff",  upon  an  escape  suffered  by  his 
baily  upon  a  mesne  process,  and  it  was  in  evidence,  as  is  neces- 
sary to  make  this  case,  that  there  was  such  a  debt,  that  such  a 
process  and  warrant  was,  and  a  due  debt,  and  lastly,  that  the 
party  arrested  was  become  insolvent ;  otherwise  he  should  not 
have  recovered  damages  to  the  value  of  his  debt,  as  he  here 
did  upon  all  this  proved  in  evidence  as  aforesaid." 

On  the  authority  of  this  case,  Mr.  Peake  f  lays  down  the  rule 

•*  Tempest  v,  Linley,  Clayton,  34.  t  Norris'  Peake,  608. 


CII.    XXI.]  PUBLIC   rOLICY.  591 

tlius :  "  In  order  to  show  the  amount  of  damages  lie  has  sus- 
tained, the  plaintiff  should  also  prove  the  circumstances  of  the 
defendant  at  the  time  of  the  arrest,  and  that  he  has  since  ab- 
sconded, or  become  insolvent ;  for  if  the  defendant  were  origin- 
ally in  bad  circumstances,  or  he  may  be  met  with  every  day, 
and  the  plaintiff  has  not  in  fact  been  injured  by  the  neg- 
ligence of  the  defendant,  the  damages  will  be  merely  [510^] 
nominal."  Mr.  Starkie  briefly  says,*  "  The  plaintiff 
must  prove  his  debt  and  the  damages  which  he  has  sustained 
from  the  sheriff's  negligence." 

In  this  country,  it  appears  to  be  settled  that  the  plaintiff, 
after  proving  his  debt  against  the  prisoner,  the  custody,  and 
escape,  is  entitled  to  recover  as  his  damages  the  amount  of  his 
debt,  unless  the  officer  can  show  that  the  defendant  was  insol- 
vent, or  in  any  other  way  prove  that  the  plaintiff  has  sustained 
no  actual  loss.'"^  "  The  body,"  says  Mr.  J.  Cowen,  in  a  case  in 
New  York,t  "  is  considered  the  highest  satisfaction  in  the  law  ; 
that  is  for  the  time,  gone  by  the  sheriff's  negligence,  and  it  is 
doing  no  violence  to  say,  that  a  defendant  who  would  escape 
had  prima  facie  secreted  himself,  or  otherwise  placed  himself 
and  property  beyond  the  reach  of  execution." 

In  this  case,  the  question  as  to  the  burden  of  proof  Avas  dis- 
tinctly presented.  The  sheriff  of  New  York  was  sued  for  the 
escape  of  one  Kelly,  against  whom  the  plaintiff  had  recovered 
a  judgment  for  $10,722.98;  the  debt  and  escape  being  proved, 
the  C.  Judge  (Edwards)  charged,  that  to  entitle  the  plaintiff  to 
recover  beyond  nominal  damages,  it  was  incumbent  on  him  to 

*  Evidence  —  Sheriff — Escape.      Vol.   ii.        t  Patterson  v.  Westervelt,  17  Wend.  543 
1016.  and  548. 


1  Marginal  page  in  third  edition  512.  [N.  B.  —  As  the  rearrangement  of  this  chapter  has 
seriously  deranged  the  marginal  paging,  this  paging  is  changed  as  far  as  necessary  to  preserve 
the  se(iuence,  and,  where  the  changes^occur,  the  number  of  the  former  page  is  given  in  a 
note.] 

2  State  use  of  Goddard  v.  Baden,  11  Md.  317  ;  Loosey  v.  Orser,  4  Bosw.  (N.  Y.)  391.  The 
true  measure  of  damages  is  the  value  of  the  custody  at  the  moment  of  the  escape.  That  value 
must  depend  on  the  circumstances  of  each  case.  If  a  party  is  in  custody  on  process  for  con- 
tempt, and  is  to  be  held  in  custody  only  till  he  pay  a  pecuniary  fine,  and  is  utterly  insolvent, 
the  damages  must  be  merely  nominal.  If  he  is  ordered  to  stand  committed  till  ho  i)eiform  a 
specified  act  which  he  has  the  power  to  perform,  the  value  of  the  custody  must  depend  on  the 
nature  of  the  act,  and  the  consequences  to  the  aggrieved  party  of  a  failure  to  secure  its  perform- 
ance. Ibid.  See  Dininny  t-.  Fay,  Sh'ff,  38  Barb.  (N.  Y.)  18,  where  the  cases  are  reviewed; 
also  Macrae  v.  Clarke,  1  L.  R.  C"  P.  403  ;  post,  513,  note. 

So,  on  the  other  hand,  in  an  action  by  the  sheriff  on  the  undertaking  or  bond  given  to  him 
on  the  arrest  of  a  party  for  a  tort  in  a  civil  action,  in  which  action  judgment  has  been  obtained 
and  the  execution  thereon  returned  unsatisfied,  the  measure  of  the  sherirt''s  damages  is  prima 
f(u:ie  the  amount  of  the  original  bail  which  is  the  "prima  facie"  measure  of  the  recovery  to 
which  also  the  plaintiff"  in  the  original  action  is  entitled  against  him.  Willett  v.  Lassalle,  19 
Ab.  Pr.  R.  (N.  Y.)  272.  So  in  Connecticut,  in  the  sherift"s  action  for  an  "  escape  on  the  secu- 
rity taken  by"  him  for  the  jail  liberties,  the  rule  is  the  debt  and  costs  on  the  execution  with 
interest.     Seymour  v.  Harvey,  8  Conn.  63. 


592  SUITS    AGAINST    PUBLIC    OFFICERS.  [ciI.    XXI. 

show  the  extent  of  the  injury  sustained  by  him ;  and  a  verdict 
for  such  damages  only,  was  accordingly  rendered.  On  motion 
for  a  new  trial,  the  court  held  the  burden  to  be  on  the  defend- 
ant, and  granted  a  new  trial ;  admitting,  however,  that  their 
decision  was  at  variance  with  the  English  rule  ;  but  insisting 
that  it  was  not  unreasonable  to  assume  that  the  plaintiff  had 
lost  his  debt  by  the  defendant's  negligence,  until  the  contrary 
should  be  proved. 

The  same  point  was  decided  in  the  same  State,*  in  an  action 
on  the  case  for  neglect  in  the  execution  of  a  writ  of  fieri  facias  ; 

the  court  "holding  the  defendant^rma/«ae  liable  for  the 
[51P]  whole  debt,  and  conclusively  so  unless  he  can  mitigate 

the  amount  by  showing  that  he  was  unable  to  collect  it 
by  an  exercise  of  proper  diligence,  as,  if  the  defendant  in  the 
execution  was  insolvent,  or  the  plaintiff  himself  have  been  the 
cause  why  the  whole  was  not  collected."  f^ 

The  same  law  was  again  laid  down  in  an  action  brought 
against  a  sheriff  for  neglecting  to  return  a  fi.fa. ;  an  omission 
of  duty  for  which  the  Eevised  Statutes  of  New  York$  have  de- 
clared that  the  officer  shall  be  liable  for  the  damages  sustained  by 
any  party  aggrieved.§ 

Nominal  Damages.  —  It  would  seem,  on  the  general  principles 
which  we  have  already  considered,  that  even  if  it  affirmatively 
appear  that  the  plaintiff"  has  sustained  no  damage,  the  officer 
guilty  of  a  technical  violation  of  duty  would  still  be  liable  for 

*  The  Bank  of  Kome  v.  Curtiss,  Sheriff,  &c.  facie  the  officer  in  fault  was  liable  for  the 

1  Hill,  275.  whole    debt,    still    he    might    mitigate^    the 

t  Pardee  v.   Robertson,   6   HiU's  Reports,  amount  not  only  by  showing  his  inability  to 

550.  collect  the  money,  but  also  by  proof  that  the 

X  Vol.  ii.  p.  358,  §  80  (2d  ed.).  debt   is   still  safe   and  collectable.      As    to    the 

§  But  in  Stevens  v.  Rowe,  3  Denio,  327,8  liability  of  the  sheritF  in  cases  of  false  return 

case  against  a  sheriff  for  not  returning  si  fi.fa.,  and  neglect,  see  Hinman  v.  Borden,  10  Wend, 

the  two  last  cited  cases  wei-e  doubted,  and  it  367,  and  Persons  v.  Parker,  3  Barb.  S.  C.  R. 

was  said,  while  admitting  the  rule  that  prima  249. 

1  Former  page  517. 

2  Such  is  the  general  rule  in  the  United  States ;  Humphrey  v.  Hathorn,  24  Barb.  278  ; 
Cai-pentcr  v.  Doody,  1  Hilt.  (N.  Y.)  465  ;  Commonwealth  v.  Contner,  18  Penn.  St.  439.  And 
in  such  an  action  the  sheriff  may  show  in  mitigation  that  other  executions  in  his  hands 
would  have  taken  the  proceeds  of  a  sale.  Forsyth  v.  Dickson,  1  Grant's  Cases  (Penn.),  26. 
Attachments  are  governed  by  the  same  rule  as  executions,  and  if  the  sheriff,  knowing  of 
property  enough  to  satisfy  the  demand,  fails  to  levy  to  that  extent,  he  is  liable  for  the  de- 
ficiency as  ascertained  by  the  i-esult  of  the  sale.  It  does  not  excuse  him  tliat  the  property 
levied  on  was  apjiraised  at  a  sum  sufficient  to  satisfy  the  debt.  Ransom  v.  Halcott,  18  Barb. 
(N.  Y.)  56. 

3  The  case  of  Stevens  v.  Rowe  (3  Den.  327)  was  overruled  in  the  New  York  Court  of  Ap- 
peals in  Ledyard  v.  Jones,  3  Seld.  550,  affirming  S.  C.  4  Sandf.  67.  It  was  there  held,  that  in 
an  action  against  a  sheriff  for  neglecting  to  retiirn  an  execution,  the  measure  of  damages  is 
■prima  facie  the  amount  required  by  the  execution.  It  is  not  necessary  for  the  plaintiff  to  allege 
or  prove  s])ecial  damages.  The  sheriff  may  show  in  mitigation  of  damages,  that  tlie  ilcfendant 
in  the  execution  had  no  property  upon  whicli  he  could  have  levied,  but  not  that  the  judgment 
is  still  collectable.     So  in  People  v.  Lott,  21  Barb.  130. 


en.  XXI.] 


NOMINAL    DAMAGES. 


593 


nominal  damages.*  ^    And  in  case  for  not  executing  a  ca.  sa.,  the 
jury  found  that  the  sheriff  was  in  default,  but  that  the 
plaintiff  had  sustained  no  damage ;   and  a  verdict  was  [512^] 
entered  for  the  defendant.      But  on  argument,  verdict 
was    entered  for  the   plaintiff,   with  nominal    damages;  Lord 
Denman  saying,  "  When  the  clear  right  of  a  party  is  invaded 
in  consequence  of  another's  breach  of  duty,  he  must  be   enti- 
tled to  an  action  against  that  party  for  some  amount.     There 
is   no   authority  to  the    contrary."!     So  in  Vermont,  if 
the  sherifi'  neglect  to  return  an  execution,  although  no  [513^] 
injury  appear  to  have  resulted,  judgment  will   still  be 
given  for  nominal  damages.^:     So  in  a  case  already  cited  in 


*  Ante,  ch.  ii.  pp.  52  and  53. 

It  may  be  useful  to  collect  here  some  con- 
flictinji  authorities  on  this  point.  In  an  early 
case,  where  the  sheriffs  of  Norwich  sued  the 
defendant,  who,  had  escaped  by  a  rescue,  on 
the  ^^round  of  their  liability  over  to  I.  S.,  at 
whose  suit  they  arrested  him,  it  was  objected 
that  the  plaintitfs  had  not  shown  that  they 
were  chaiged,  or  in  any  way  damnified  ;  but 
the  objection  was  held  ill.  Sheriffs  of  Norwich 
V.  Bradshaw,  Cro.  Eliz.  53. 

In  Crompton  v.  Ward,  1  Str.  429,  436,  it  is 
said,  "  That  the  plaintiff  has  an  interest,  a 
sort  of  property,  in  the  body  of  the  prisoner, 
and  sustains  a  damage  by  a  rescue."  But  what 
damage  is  not  said. 

In  Powell  V.  Hord,  1  Strange,  650,  an  action 
for  a  false  return  on  mesne  process,  the  court 
held,  "  That  if  the  defendant  were  a  man  of 
estate,  and  could  still  be  taken,  and  so  no 
damage,  they  should  think  the  debt  too  much 
to  give  ;  but  that  not  being  this  case,"  the  jury 
found  the  whole  debt  as  damages,  with  the 
opinion  of  the  chief  justice. 

And  so,  again,  in  Planck  v.  Anderson,  5  T. 
11.  37,  it  was  held  that  the  sheriff  is  not  liable 
to  an  action  for  an  escape  on  mesne  process,  if 
the  jury  find  that  the  plaintiff  has  not  been 
delayed  or  prejudiced  in  his  suit. 

And  in  Beckford  v.  Montague,  2  Esp.  476, 
case  for  a  false  return  of  mesne  process,  the 
original  defendant  being  still  within  the  reach 
of  process,  Lord  Kenyon  told  the  jury  that 
they  were  not  called  on  to  give  the  plaintiff 
the  M-hole  extent  of  the  debt,  if  the  original 
debtor  was  still  solvent.  See  also,  White  v. 
Jones,  5  Esp.  160. 

In  Barker  v.  Green,  2  Bing.  317,  case  for 
not  arresting  J.  W.,  it  was  held  that  though 
the  plaintiff  had  sustained  no  actual  damage, 
it  was  still  a  case  for  nominal  damages,  and 
the  court  refused  to  enter  a  nonsuit. 


But  in  Williams  v.  Mostyn,  4  Mees.  &  Wels. 
145,  where  case  was  brought  for  the  voluntary 
escape  of  one  Langford,  taken  on  mesne  pro- 
cess, and  it  was  admitted  that  the  plaintiff  had 
sustained  no  actual  damage  or  delay,  the  defend- 
ant having  returned  to  the  custody  of  the 
plaintiff,  a  verdict  was  found  for  the  plaintiff 
with  nominal  damages.  And  on  motion  the 
court  directed  a  nonsuit  to  be  entered,  saying, 
"  that  there  had  been  no  damage  in  fact  or  law;" 
and  they  disapproved  of  the  case  last  cited  — 
Barker  v.  Green. 

In  Bales  v.  Wingfield,  4  Q.  B.  580,  where 
case  was  brought  against  the  sheriff  for  neg- 
lecting to  sell  under  a,Ji.fa.,  the  writ  was  de- 
livered to  the  sheriff,  who  seized  on  the  24th, 
and  advertised  a  sale  for  the  6th  of  May ;  he 
did  not,  in  fact,  sell  till  the  27th.  On  the  15th 
of  May  a  fiat  in  bankniptcy  issued,  and  so  the 
sheriff  returned  "  no  goods."  The  Q.  B.  held 
that  it  lay  on  the  plaintiff  to  show  damage; 
and  a  verdict  for  nominal  damages  being  en- 
tered, thev  refused  to  set  it  aside.  S.  C.  Nev. 
&Man.  831. 

But  in  Wj'lie  v.  Birch,  4  Q.  B.  566,  case  for 
a  false  return.  Lord  Denman,  C.  J.,  assumed 
the  principle  that  the  action  could  not  be 
maintained  against  the  sheriff  for  breach  of 
duty  unless  damage  accrued  thereby  to  the 
plaintiff,  and  cited  the  above  cases ;  but  said, 
also,  that  the  breach  of  duty  afforded  pre- 
sumption of  some  damage  to  the  party  who 
sets  the  sheriff  in  motion  ;  and  in  such  a  case 
it  seems  still  in  England  that  if  the  plaintiff 
offered  no  proof  of  actual  injury,  he  would  be 
entitled  to  nominal  damages. 

t  Clifton  V.  Hooper,  6  Q.  B.  K.  468,  a  dis- 
tinction was  pointed  out  between  mesne  and 
final  process,  to  which  it  may  be  i)roper  to 
advert. 

I  Kidder  v.  Barker,  18  Verm.  454. 


1  So  where  in  Ohio  the  sheriff  refused  to  levy  on  and  sell  under  an  execution  in  his  hands, 
at  the  request  of  the  plaintiff  in  the  execution,  certain  personal  property,  which  was  wholly 
covered  bv  mortgages  to  an  amount  far  more  than  its  value,  it  was  held  there  should  be  a  ver- 
dict for  nominal  damages  only.     Coe  v.  Peacock,  14  Ohio  St.  187  ;  Coopers  v.  Wolf,  15  Ohio 

St.  523. 

2  Former  page  510.  ^  Former  page  511. 

38 


594  SUITS   AGAINST   PUBLIC    OFFICERS.  [ciI.    XXI. 

Massachusetts,  against  a  sheriff  for  neglecting  to  return  an  exe- 
cution, the  Supreme  Court  of  that  State  said,  "  The  plaintiff  is 
entitled  to  nominal  damages  for  the  officer's  neglect.  No  actual 
damages  are  proved,  but  where  there  is  neglect  of  duty,  the  law 
presumes  damages."  *  But  in  Vermont,  in  an  action  brought 
against  an  officer  who  had  attached  the  plaintiff's  goods,  it  has 
been  said,  "  That  no  case  can  be  found  where  damages  have 
been  given  for  trespass  to  personal  propert?j,  where  no  unlawful 
intent  nor  disturbance  of  "a  right  or  possession  is  shown,  and 
where  not  only  all  prohaUe  but  all  possible  damage  is  expressly 
disproved."!     And  this  certainly  ought  to  be  the  rule.^ 

The  Value  of  the  Custody  at  the  Time  of  .  the  Escape  affords 
THE  Rule  in  England.  —  In  a  case  in  England,  the  Court  of  .Com- 
mon Pleas  said,  that  they  had  not  been  able  to  find  any  decision 
in  which  the  rule  as  to  the  measure  of  damages  was  clearly  de- 
fined. The  principal  case  was  one  in  which  it  was  endeavored 
to  reduce  the  liability  of  the  sheriff  by  showing,  where  an  escape 
from  final  process  had  taken  place,  that  the  plaintiff  might,  by 
diliorence,  have  re-arrested  or  detained  the  defendant  and  recov- 
ered  his  debt.  But  this  was  denied ;  and  it  was  declared  that 
the  true  measure  of  damages  is  the  value  of  the  custody  of  the 
debtor  at  the  moment  of  the  escape  ;  that  if  at  the  time  of  the 
escape  the  debtor  had  not  the  means  of  satisfying  the  judgment, 
the  plaintiff  loses  only  the  security  of  the  debtor's  body,  and 
the  damage  may  be  small.  If,  on  the  other  hand,  at  the  time 
of  the  escape,  the  debtor  could  pay,  and  has  wasted  his  means 
since  then,  it  being  clear  that  the  loss  of  the  debt  is  owing  to 
the  sheriff's  neglect,  the  jury  would  be  justified  in  giving  the 
full  amount  of  the  execution.$^ 

*  Laflin  r.  Willard,  16  Pick.  64,  See  also,  %  Arden  v.  Goodacre,  11  C.  B.  R.  (2  J. 
Goodnow  V.  Willard,  5  Met.  517.  Scott)  371, 

t  Paul  V.  Slason,  22  Verm.  231,     Ante,  51. 

1  But  the  present  rule  in  Vermont  again  conforms  to  the  general  doctrine,  if,  indeed,  that 
doctrine  can  be  regarded  as  departed  from  in  the  guarded  language  which  is  cited  in  reference 
to  a  trespass.  See  ante,  53,  note  2,  It  has,  however,  very  lately  been  held  by  the  Coiu-t  of 
Queen's  Bench,  in  an  action  against  a  sheriff  for  not  duly  executing  a^fi./a.  and  making  a 
false  return  thereon,  where  there  was  no  actual  damage,  that  the  plaintiff  was  not  entitled  to 
nominal  damages.  The  case  of  an  escape  on  a  ca.  sa.,  in  which,  although  the  plaintiff  could 
have  derived  no  pecuniary  advantage  from  the  custody  of  the  debtor,  he  is  nevertheless  held 
entitled  to  nominal  damages,  proceeds,  on  what  is  pronounced  by  the  learned  court,  this  differ- 
ent footing,  that  the  creditor  has  a  right  to  have  the  body  of  the  debtor  kept  in  custody.  Hob- 
son  V.  Thelluson,  2  L.  R.  (Q.  B.)  642.  But  with  a  sincere  dithdencein  our  own  judgment,  we 
cannot  refrain  from  questioning  this  decision.  Under  circumstances  giving  an  officer  no  dis- 
cretion, his  failure  to  fulfill  a  positive  duty  imposed  by  law  for  the  benefit  or  protection  of 
others,  is  always,  in  a  legal  sense,  a  wrong  to  the  person  in  whose  behalf  the  duty  should  have 
been  discharged ;  and  where  there  is  a  legal  wrong,  there  should  always  be  a  legal  remedy.  A 
right  of  action,  as  it  seems  to  us,  is  given  in  such  a  case,  and  once  given,  it  is  not  destroyed  by 
the  fact  that  it  proves  to  inflict  no  damage. 

2  So  in  a  late  case  in  the  English  Common  Pleas,  it  is  held  that  the  jury,  without  proof  of 


OIL    XXI.]  AMERICAN   DECISIONS.  595 

But  it  is  plain  that  this  still  leaves  the  whole  subject  at  very 
loose  ends.  What  is  meant  by  the  value  of  the  security  of  the 
body  of  a  debtor  ?  Are  his  physical  and  mental  qualifications 
to  be  gone  into,  and  the  chance  of  his  subsequently  acquiring 
property,  to  be  estimated  ?  Are  the  chances  of  his  friends  being 
induced  or  coerced,  by  reason  of  his  imprisonment  into  paying 
the  debt,  to  be  inquired  of?  Again,  what  can  be  more  vague 
than  in  a  matter  of  this  kind,  to  say  that  "  the  damages  ma//  he 
small''  Nor,  on  the  other  hand,  even  if  the  debtor  is  solvent, 
is  the  liability  of  the  sheriff  to  pay  the  debt  declared  as  matter 
of  law.  It  is  simply  said  that  the  jury  would  be  ^^  justified  in 
giving  the  full  amount  of  the  execution^  And  the  question  on 
whom  the  burden  of  proof  as  to  the  debtor's  pecuniary  condi- 
tion Mis,  is  not  alluded  to.  It  is  plain  that  the  whole  subject 
in  England  is  in  a  state  of  perplexing  uncertainty. 

We  turn  now  to  the  American  cases.^ 

the  actual  resources  of  the  debtor,  may,  in  estimating  the  value  of  the  custody,  consider  the 
surrounding  cii'cumstances  showing  the  probability  that  the  creditor  might  have  obtained 
payment  by  means  of  it,  —  such  as  the  value  of  the  estate  of  an  aged  father  of  whom  the 
debtor  was  the  only  son,  and  the  offer  of  the  debtor's  solicitor,  some  time  before  his  arrest, 
to  pay  a  certain  amount  in  composition  of  his  debts.  Macrae  v.  Clarke,  1  L.  R.  C.  P. 
40.3. 

1  The  Supreme  Court  of  Ohio  says  that  in  this  country  the  following  i;ules  seem  now  to  be 
settled  by  the  preponderating  weight  of  authority. 

1.  On  proving  the  judgment,  arrest,  and  escape,  the  plaintiff  is  ^ri'/Ha/acte  entitled  to  recover 
the  whole  amount  of  his  debt. 

2.  To  reduce  the  amount  of  the  recovery  below  the  amount  of  the  debt  due  from  the  escap- 
ing priso7ier,  the  onus  prohandi  rests  upon  the  defendant. 

3.  For  this  purpose  the  defendant  may  not  show  that  the  amount  of  the  debt  is  still  capable 
of  being  collected  from  the  escaped  prisoner,  but  may  show  his  partial  or  total  insolvency  or 
pecuniary  worthlessness  at  the  time  of  the  escape. 

5.  That  on  proving  judgment,  arrest,  and  escape,  the  plaintiff  in  all  cases  is  entitled  to  re- 
cover at  least  nominal  damages. 

5.  Where  the  jury  find  the  escape  to  have  been  not  only  voluntary  on  the  part  of  the 
officer,  but  that  in  permitting  the  same  he  was  actuated  by  fraud,  malice,  or  corruption, 
they  are  not  restricted  to  the  amount  of  injury  actually  sustained,  and  may  include  reason- 
able exemplary  damages,  but  with  this  exception,  where  evidence  in  mitigation  is  given,  the 
actual  injury  sustained  is  the  proper  measure  of  recovery.  Hootman  v.  Shriner,  15  Ohio 
State,  43. 

Where,  however,  a  defendant  is  arrested  by  the  sheriff,  and  gives  bail,  and  is  discharged, 
but  the  bail  do  not  justify,  the  sheriff  becomes  bail,  and  is  liable  to  the  same  extent  to  which 
the  bail  would  have  been  had  they  justified.  In  sxich  case,  therefore,  after  the  return  of 
the  execution  unsatisfied,  the  sheriff'  is  liable  for  the  judgment  and  interest,  and  the  insol- 
vency of  the  judgment  debtor  will  not  go  in  mitigation  of  the  damages.  Metcalf  v.  Stryker, 
31  Barb.  62. 

The  summary  of  the  American  law  on  the  subject  in  the  above  case  of  Hootman  v.  Shriner, 
is  doubtless  as  correct  as  it  is  clear  and  succinct.  Yet  the  proof  of  partial  insolvency,  which 
the  third  projjosition  above  declares  to  be  admissible,  is  open  to  a  discussion  akin  to  that  in  the 
text  concerning  the  value  of  the  custody.  If  the  debtor  is  hopelessly  insolvent,  it  is  i>lain  that 
tlie  injury  to  his  creditor  from  his  escape  must  l)e  nominal  only.  Although  in  theory,  the  old 
and  barbarous  notion  of  the  debtor's  body  serving  as  a  satisfiiction  of  the  debt  is  not  entirely 
discarded  in  those  cases  where  imprisonment  for  debt  still  exists  (notwitlistanding  the  "poor 
debtors'  acts"  so  generally  enacted  seem  fatal  to  it),  the  practical  object  of  the  imprisonment 
is  to  coerce  him  into  payment.  If  he  has  nothing,  the  coercion  is  of  course  useless.  But  in 
the  case  of  "  partial  insolvency,"  as  it  is  called,  we  are  wholly  without  any  practical  measure 
of  the  damages.  It  is  true,  that  where  the  debtor  has  made  a  general  assignment  of  his  as- 
sets, and  they  are  insufficient  to  pay  the  debts  in  full,  or  where  otherwise  an  arrangement  is 
made  by  which  where  the  assets  do  not  equal  the  debts,  they  can  be  apportioned  pro  rata  to 


596  SUITS    AGAINST   PUBLIC    OFFICERS.  [CH.    XXL 

American  Cases  —  Actual  In j  ury  —  Mitigation.  —  In 
[514^]  an  early  case  in  New  York,*  the  facts  were  these.  One 
Briggs  had  been  master  of  the  scliooner  Friendship,  and 
had  signed  bills  of  lading  for  goods  shipped  at  New  York  by 
Potter,  the  plaintiff,  for  account  and  risk  of  a  West  India  house, 
to  the  amount  £1,655  9s.  3d.  South  Carolina  currency.  He  also 
owed  the  plaintiff  a  balance  of  £129  lis.  M.  Briggs  ran  away 
with  the  goods,  and  never  delivered  them.  Potter  sued  Briggs, 
and  he  was  arrested  on  a  capias  ad  respondendum,  and  after  being 
in  prison  some  time,  escaped  by  the  assistance  of  his  friends. 
The  sheriff  made  a  special  return  to  the  writ,  of  a  rescue :  the 
plaintiff  sued  the  sheriff  in  case,  for  the  escape  and  false  return. 
It  aj)peared  on  the  trial  that  Briggs  was  very  poor,  and  had  no 
means  of  subsistence ;  and  the  defendant  offered  to  prove  that 
the  plaintiff's  attorney,  after  the  escape,  admitted  Briggs  "  to 
be  not  worth  a  cent."  This,  however,  was  excluded.  The 
judge  charged  that  the  facts  did  not  justify  the  sheriff's  return 
of  a  rescue ;  that  the  plaintiff  had  established  a  right  of  action, 
as  well  for  the  value  of  the  goods  shipped  as  for  the  balance  of 
account ;  but  that  the  jury  were  to  decide  the  damages  under 
all  the  circumstances :   that  the   poverty  of  Briggs  might  be 

*  Potter  V.  Lansing,  1  J.  R.  215.     See  Bal-  Henly,  1  M.  &  Rob.  227,  where  Littledale,  J., 

den   V.    Temple   (Hobart,   202),   for  nominal  said,   "that   the   sheriff  was   only   liable  for 

escape,  but  which  decides  nothing  as  to  the  escape  on  mesne  process,  for  such  damages  as 

point  Ave  are  here  considering.  See  also,  Lewis  the  plaintiff  can  show   he  has   actually  sus- 

V.  Moreland,  2  Barn.  &  Aid.  56  ;  Brown  v,  tained." 
Jarvis,  1   Mees.  &  Wels.  709;    and  Scott  v. 

them,  a  particular  debt  will,  on  the  liquidation  of  the  assets,  have  a  definite  value.  It  will  be 
that  ])roportion  of  the  debt  which  the  whole  net  assets  bear  to  the  whole  amount  of  the  debts. 
But  there  can  be  no  pro  rata  apportionment  of  assets  to  executions,  which  are  paid  in  full  in 
the  order  of  their  priority.  The  only  case  of  "  partial  insolvency  "  of  the  debtor,  therefore, 
which  can  practically  affect  the  measure  of  damages  against  the  sheriff  for  failure  to  collect  an 
execution,  is  where  specific  property  only  belonging  to  him,  is  known  to  exist  subject  to 
execution,  but  less  in  value  than  the  amount  of  the  particular  execution  under  which  the 
sheriff  is  sought  to  be  charged  for  the  escape  ;  and  it  is  in  this  definite  sense  only,  we  think, 
that  partial  insolvency  will  go  in  mitigation.  Where  it  can  neither  be  shown  that  the 
debtor  can  pay  the  whole  debt,  nor  that  he  has  specific  property  of  ascertainable  value  ap- 
plicable to  it,  and  which  might  have  satisfied  it  in  part,  it  must  be  impossible  to  say  that  the 
value  of  the  custody  is  worth  any  specified  fraction  of  the  debt,  since  there  are  no  elements 
or  means  for  such  a  calculation.  But  the  burden  in  this  country  is  always  on  the  sheriff, 
and  solvency  should  be  presumed  so  far  as  he  cannot  definitely  show  that  the  debt  was  not 
collectable. 

In  the  case  of  Jenkins  v.  Troutman,  7  Jones'  Law  R.  (N.  C.)  169,  the  court  while  again  recog- 
nizing the  rule  of  mitigation  already  acquiesced  in,  in  that  State  (Murphy  v.  Troutman,  5 
Jones'  Law  R.  (N.  C.)  379),  by  allowing  the  defendant  to  mitigate  the  damages  by  showing  that 
the  effect  of  his  wrongful  act  was  not  so  great,  because  the  escaped  debtor  could  not  pay  the 
debt,  or  any  part  of  it,  rejected  as  irrelevant,  proof  that  the  defendant  was  "  largely  indebted," 
which  was  oft'ered  with  a  view  to  establish  the  probability  that  the  debtor  would,  if  arrested, 
have  assigned  his  property  to  secui-e  the  payment  of  those  debts,  thereby  diminishing  the  plain- 
tiff's chances  of  satisfaction.  So  in  the  case  of  Sherrill  v.  Shuford,  10  Iredell  (N.  C),  200,  the 
court  say,  "  the  true  inquiry  is,  has  the  defendant,  by  his  negligence,  deprived  the  plaintiff  of 
any  legal  means  of  securing  the  payment  of  his  debt  ?  If  he  has,  and  the  debtor  had  property 
which  might  by  due  process  have  been  subjected  to  it,  he  shall  answer  the  full  amount  of  the 
debt." 

1  Former  page  513. 


CH.    XXI.]  AMERICAN    DECISIOJIS.  597 

considered  in  mitigation,  and  if  the  return  of  the  sheriff  was 
fraudulently  made,  it  would  be  an  aggravation  of  damages.  The 
jury,  taking  into  consideration  both  the  amount  of  the  invoice 
and  the  balance  of  the  account,  found  for  the  plaintiff  |o,000, 
which  (as  appears  by  the  opinion  of  Livingston,  J.)  was  about 
half  the  plaintiff's  demand  against  Briggs.  On  motion  for  a 
new  trial,  the  court  held  the  declarations  of  the  plaintiff's  attor- 
ney rightly  excluded.  As  to  the  rule  of  damages,  Tompkins, 
J.,  said,  — 

"  It  is  impossible  to  determine  whether  the  circumstance  of  the  defendant 
having  made  a  false  return  to  the  writ  operated  on  the  minds  of  the  jury  to 
increase  the  damages.  The  judge  was  perfectly  correct  in  stating  to 
them  that  the  return  was  legally  false.  But  I  do  not  think  that,  even  [olo  _) 
if  the  sheriflf  knew  it  to  be  so,  it  ought  to  aggravate  the  damages.  The 
true  question  is,  what  has  the  plaintiff  lost  in  consequence  of  this  escape  ?  The 
alleged  false  return  by  the  sheriff,  neither  adds  to  nor  diminishes  the  loss ;  and 
therefore  the  solvency  of  Briggs,  or  his  capacity  to  pay,  must  determine  the 
quantum  of  damages  sustained.  If  the  circumstance  of  a  false  return  be  a  sub- 
stantive ground  of  damages,  it  would  follow  that  where  the  person  escaping  was 
perfectly  solvent,  and  the  sheriff  makes  a  false  return,  the  creditor  might  recover 
in  damages  more  than  the  full  amount  of  his  debt. "  * 

But  a  new  trial  was  granted,  on  the  ground  that  the  plaintiff, 
the  consignor  —  the  goods  being  shipped  for  account  and  risk 
of  the  West  India  house  —  could  not  have  recovered  against 
Briggs,  and  in  this  opinion  Kent,  C.  J.,  and  Spencer,  J.,  con- 
curred. Livingston,  J.,  and  Thompson,  J.,  who  dissented  as  to 
the  right  of  the  consignor  to  bring  the  action,  concurred  in  the 
rule  of  damages  laid  down  as  above  by  Tompkins,  J.  Thomp- 
son, J.,  said,  "If  the  idea  communicated  to  the  jury  was  that 
they  might  give  what  is  commonly  called  smart  money,  beyond 
the  actual  damage  of  the  plaintiff,  it  was  undoubtedly  incorrect."  f 

Li  another  case  in  the  same  State,$  the  plaintiff  had  on  the 
second  Monday  of  November,  1806,  issued  a  capias  ad  respon- 
dendum to  the  defendant,  sheriff  of  Rensselaer  County,  against 

*  This  is  strong  to  show,  that  although  the  of  that  kind  was  improper,  the  statute,  having 

action  be   in   tort   still   the   verdict  must  be  fixed  the  extent  of  the  sheriff's  liability,  that 

restricted  within  the  limits  of  legal  compensa-  is,  for  the  original  debt  and  damages  recovered; 

tion.  and  the  plaintiff  was  confined  to  the  precise 

t  In  an  early  case  on  an  action  of  debt  for  amount  of  his  original  judgment  and  costs, 

escape,  Spencer,  J.,  said,  "  If  an  action  on  the  Rawson  v.  Dole,  2  J.  R.  454.     The  remedy 

case  had  been   brought,  it  might  have  been  given   by   the    action   of   debt,    as   we   have 

inquired,  what  was  lost  by  the  escape  ;  and  the  already  seen,  no  longer  exists  in  New  York, 

jury  might  have  given  such  damages  as  they  See  also,  Van  Slyck  v.  Hogeboom,  6  J.  R. 

supposed  the  party  hiid  sustained."  But  in  an  270. 

action  of  debt,  it  was  held  that  every  inquiry  X  Russell  v.  J.  Turner,  Sheriff,  7  J.  R.  189. 

1  Former  page,  514. 


598  SUITS   AGAINST   PUBLIC    OFFICERS.  [CH.    XXI. 

one  Abel  Turner  and  others.  Turner  was  arrested  by  the  sher- 
iff, and  gave  bond  on  the  5th  of  November,  1806,  for  the  liber- 
ties of  the  jail,  and  admitted,  when  arrested,  that  he  owed  the 
plaintiff  about  $800  ;  and  in  November  Term,  1806,  he  confessed 

a  judgment  for  $871.36,  docketed  on  the  30th  Decem- 
[516^]  ber,  1806.     He  soon  after  escaped,  and  went  to  Vermont. 

The  defendant  proved  that  in  November,  1809,  Abel 
Turner  was  again  arrested  at  the  suit  of  the  plaintiff,  on  his  way 
to  Vermont,  and  gave  a  cognovit  for  $871.39,  on  which  the 
plaintiff  relinquished  to  him  a  tract  of  land  in  Vermont,  which 
he  had  received  as  security,  and  which  a  witness  testified  was 
of  more  value  than  the  debt,  and  the  plaintiff  gave  him  a  receipt 
in  full  of  all  demands,  except  the  suit  in  Rensselaer  County.  It 
was  agreed  that  the  execution  was  to  be  stayed  for  one  year, 
and  the  plaintiff  said  he  meant  to  charge  the  sheriff  of  Rens- 
selaer County.  The  jury  were  instructed  at  the  trial,  that  the 
plaintiff  ought  not  to  recover  more  than  the  actual  damages 
which  he  had  sustained,  of  which  they  were  to  judge,  and  in 
the  estimation  of  which  they  had  a  right  to  take  into  considera- 
tion all  the  circumstances.  A  verdict  was  given  for  six  cents. 
On  motion  for  a  new  trial,  it  was  insisted  by  the  plaintiff,  that 
he  was  entitled  to  recover  the  whole  sum  due  him  in  the  orig- 
inal action. 

Thompson,  J.,  delivering  the  opinion,  said, — 

"  The  question  is,  Whether  it  was  competent  for  the  sheriff  to  show  that  the 
plaintiff  had,  after  he  knew  of  the  escape,  relinquished  to  the  prisoner  real  secu- 
rity for  the  debt,  which  he  held  in  the  State  of  Vermont,  with  a  view  to  recover 
his  demand  of  the  sheriflP.  The  true  question  in  cases  of  this  kind  is,  what  has 
the  plaintiff  lost  in  consequence  of  the  escape.  The  jury  are  not  confined  to  the 
exact  damages  in  the  final  judgment,  as  to  the  amount  of  the  plaintiff's  demand, 
but  have  a  power  and  discretion  to  assess  such  damages  as  they  shall  suppose  the 
plaintiff  has  sustained  under  all  circumstances. 

*'  The  value  and  extent  of  this  security  was  a  proper  subject  for  the  consid- 
eration of  the  jury,  and  could  the  plaintiff  have  shown  it  to  be  worth  little  or 
nothing,  it  would  not  have  mitigated  the  damages.  As  the  testimony,  however, 
appeared  before  the  jury,  it  was  sufficient  to  pay  the  plaintiff's  demand.  It  was 
admitted  by  the  plaintiff's  counsel,  and  indeed  could  not  be  denied,  that  the  insol- 
vency of  the  prisoner,  or  payment  of  the  demand  by  him,  could  be  given  in  evi- 
dence in  mitigation  of  damages.  On  what  principle  could  this  be  done  ?  None 
other  certainly  than  to  show  how  far  the  plaintiff  had  been  or  was  likely  to  be 
damnified.  If  the  prisoner  had  deposited  with  the  plaintiff  a  sum  of  money  to 
satisfy  his  demand  when  ascertained  by  judgment,  and  the  plaintiff  on  discovering 

1  Former  page  515. 


CH.  XXI.]  AMERICAI^   DECISIONS.  599 

that  an  escape  had  been  made,  had  surrendered  up  the  money,  could  it  be  doubted 

that  tlie  sheritf  might  avail  himself  of  it  in  mitigation  of  damages?     Or,  suppose 

the  suit  upon  a  bond  which  was  secured  by  mortgage  on  real  property,  and  the 

creditor  on  discovering  the  escape  should  discharge  the  mortgage,  would  not  this 

circumstance  be  admissible  in  mitigation  of  damages  ?     All  these  cases  depend  on 

the  same  principle,  and  necessarily  result  from  the  nature  of  the  action, 

which    is  given    to  the  plaintiff  by  way  of  indemnity   for   the  actual    L0l7  J 

injury  which  he  sustains  by  reason  of  the  escape ;  and  the  plaintiff  ought 

not  to  be  permitted  to  avail  himself  of  his  own  acts  or  misconduct  to  enhance  the 

damages. " 

Again  *  where  suit  was  brought  by  the  plaintiff  as  assignee 
of  the  sheriff,  on  a  bail  bond,  given  by  the  defendants,  condi- 
tioned that  one  Brown  should  keep  the  liberties,  etc.,  the  plain- 
tiff proved  his  judgment  and  the  escape.  The  defendant  proved 
that  Brown  was  insolvent,  and  only  possessed  a  cow  worth  six- 
teen dollars.  The  judge  directed  the  jury  to  find  a  verdict  for 
the  plaintiff  for  sixten  dollars,  the  value  of  the  cow,  which  was 
done.  There  were  cross-motions  in  arrest  of  judgment  and  for 
a  new  trial.  Both  motions  were  denied ;  the  court  saying,  "  The 
plaintiff  is  entitied,  prima  facie,  to  recover  his  whole  debt  which 
is  presumed  to  be  lost  by  the  escape ;  and  it  could  only  have 
been  reduced  down  to  the  sum  found  by  the  verdict,  upon  the 
evidence  given,  that  if  the  party  had  not  escaped  there  was  no 
ground  to  consider  that  any  greater  sum  could  have  been  re- 
covered of  the  original  defendant,  by  the  coercion  of  confine- 
ment." 

In  Vermont  the  rule  seems  stringent,  though  the  action  on 
the  case  is  resorted  to.  It  has  been  well  understood  and  univer- 
sally recognized  in  that  State  for  thirty  years,  that  an  officer 
who  holds  penal  process  against  a  debtor  upon  whom  he  may 
serve  it,  but  who  omits  to  do  so,  or  having  once  had  an  oppor- 
tunity to  arrest  the  debtor  neglects  to  do  it,  and  the  debtor  af- 
terwards absconds,  —  becomes  Jixed  mth  the  debt ;  and,  of  course, 
no  evidence  as  to  the  debtor's  insolvency  is  admissible.f  So  in 
the  same  State,  in  an  action  against  the  sheriff  for  the  escape  of 
the  debtor  from  the  liberties  of  the  jail,  he  having  taken  insuffi- 
cient security,  the  rule  of  damages  is  the  amount  of  the  debt,  t 

In  Illinois,  in  actions  upon  the  official  bond  of  a  constable  for 
failure  to  return  an  execution,  the  measure  of  damages  is  the 

*  Kellogg  V.  Brown,  9  J.  R.  300.  the   same    State,  Vilas  v.  Barker,   20  Verm, 

t  Goodrich  v.  Starr,  18  Verm.  227.  603,  an  action  against  a  sheriff  for  refusing  to 

\  Wheeler  v.  Pettes,  21  Verm.  398.     See  in     assign  a  jail  bond  to  the  creditor. 

1  Former  page  516. 


600  SUITS    AGAINST   PUBLIC    OFFICERS.  [cil.    XXI. 

amount  of  the  execution,  with  interest  from  the  date  of  the 
judgment  on  which  it  issued,  notwithstanding  the  defendant  in 
the  execution  was  wholly  insolvent  from  the  time  of  its  issue  to 
that  of  its  return.* 

So  in  Nortli  Carolina  the  remedy  of  debt  is  given  against  the 
sheriff  who  shall  willfully  or  negligently  suffer  a  debtor  charged 
in  execution  to  escape ;  and  in  this  action,  as  I  have  said,  there 
is  no  question  as  to  the  measure  of  damages :  the  sheriff  is  fixed 
with  the  debt.t  In  the  same  State,  in  regard  to  mesne  process, 
it  has  been  said  that  the  true  inquiry  is,  whether  the  debtor  had 
any  property  which  might  by  due  process  have  been  subject  to 
execution,  and  whether  the  sheriff  by  his  negligence  has  deprived 
the  plaintiff  of  his  remedy.  But  it  is  no  answer  for  the  sheriff 
to  say  that  the  debtor,  even  after  being  imprisoned,  might  pay, 
or  secure  to  be  paid  by  assignment,  other  hand  fide  debts, 
[518^]  to  the  disappointment  of  the  plaintiff,  t  Nor  on  such 
process  is  the  reputation  of  the  defendant  as  an  insolvent 
any  excuse  ;  the  officer  is  bound  to  ascertain  for  himself  whether 
there  is  property  to  satisfy  the  writ.§ 

In  Arkansas,  also,  it  has  been  held,  that  in  actions  for  escape 
from  mesne  process,  the  presumption  is  that  the  plaintiff  lost  the 
entire  debt  by  the  escape ;  and  the  measure  of  damages  against 
the  officer  is  the  amount  of  the  original  debt ;  ^  but  the  defend- 
ant is  at  liberty  to  prove  in  mitigation  of  damages  that  the  debt 
could  not  have  been  made  out  of  the  debtor.|l 

In  Georgia,  in  an  action  of  debt  upon  the  sheriff's  official  bond 
for  an  escape  on  mesne  process,  it  has  been  held  that  the  in- 
solvency of  the  original  debtor  may  be  given  in  evidence  by  the 
defendant  in  mitigation  of  damages ;  ^  and  in  that  State  the 
opinion  of  a  witness  may  be  given  in  evidence  as  to  the  insol- 

*  Eobertson  v.  County  Com'rs,  5  Oilman,  on  which   the  levy  might  have  been   made. 

559.     This  decision  is  founded  on  the  statute  The  court  say  the  officer  was  under  no  legal 

of  that  State.  obligation  to  make  the  levy  unless  the  defend- 

t  Adams  v.  Turrentine,  8  Iredell,  147.  ant  had  property  at  the  time  upon  M'hich  to 

X  Sherrill  v.  Shuford,  10  Iredell,  200.  make  it,  and  it  was  incumbent  on  the  plaintiflF 

§  Parkes  v.  Alexander,  7  Iredell,  412  ;  The  to  allege  the  fact  in  the  declaration  ;  and  this 

State  V.  Edwards,  10  Iredell,  242.  correctly,  for  no  such  presumption  exists  on 

II  Faulkner  y.  Bartley,  6  Ark.    (1  English)  executions   against  property    before   levy,    as 

150.  on  mesne  process  after  arrest.      State,  use  of 

But  in  the  same  State  it  is  also  held  that  in  Brooks  v.  Kirby,  6  Ark.  (1  English)  Reports, 

declaring   against   a  constable  for  failing   to  45.3. 

levy  an  execution,  it  is  necessary  to  allege  that        T[  Crawford  v.  Andrews,  6  Georgia,  244. 

the  defendant  in  the  execution  had  property 


1  Former  page  519. 

2  So  in  the  United  States  Circuit  Court  for  the  District  of  Columbia,  it  is  held  that  if  the 
marshal  fail  to  bring  in  the  body  of  the  defendant  on  the  return  of  the  writ,  he  will  be  amerced 
in  the  full  amount  of  the  debt  or  damages  and  costs.  Winter  v.  Simonton,  2  Cr.  C.  C.  R. 
585. 


CII.    XXI.]  AMERICAN    DECISIONS.  601 

vency  of  a  party,  provided  it  be  accompanied  b}'^  tbe  facts  on 
which  the  opinion  is  founded.* 

In  Massachusetts  it  has  been  said,  that  in  actions  of  this  kind, 
"It  is  pecuharly  the  right  of  the  jury  to  assess  the  damages,  and 
in  this  they  are  not  restricted  to  any  precise  sum."t  And  so 
again, "that  the  jury  have  the  subject  of  damages  at  their  discre- 
tion." t  But  notwithstanding  this  general  language,  the  rule 
appears  settled  there  in  conformity  with  that  in  New  York, 
namely,  that  the  amount  of  the  plaintiff's  debt  is  prima  facie 
the  measure  of  damages ;  §  that  it  is  competent  for  the  defendant 
to  show  in  mitigation  of  damages  any  circumstances 
which  go  to  prove  that  the  plaintiff  has  in  truth  not  suf-  [519^] 
fered  any  actual  injury  from  the  loss  complained  of,||  ^ 
and  that,  on  the  other  hand,  it  is  competent,  if  the  wrong  be  a 
willful  one,  for  the  jury  to  give  more  than  the  actual  loss.*[[  In 
a  recent  case  in  that  State,  where  case  was  brought  against  a 
sheriff  for  not  taking  sufficient  bail,  the  principal  debtor  being 
sued  to  judgment  and  the  execution  returned  unsatisfied,  this 
language  was  held  :  "Although  the  amount  of  the  judgment  is 
pnmd  facie  evidence  of  the  measure  of  damages,  yet  this  may 
be  controlled  by  evidence  showing  the  entire  inability  of  the 
debtor  to  pay,  and  the  actual  injury  therefrom  to  be  less  than 
the  amount  of  the  judgment  against  him."  And  although  the 
principal  debtors  had  left  the  State,  and  could  not  be  found  on 
the  execution,  evidence  as  to  their  poverty  was  held  admissible, 
the  court  saying,  "  The  fact  that  the  principal  debtors  were  out 
of  the  commonwealth,  and  could  not  be  arrested  on  execution, 
may  be  important  in  its  bearing  upon  the  amount  of  damages 
sustained  by  the  default  of  the  sheriff,  but  it  does  not  affect  the 
rule  of  damages,  or  the  competency  of  evidence  tending  to  show 
the  entire  inability  of  the  debtors  to  satisfy  the  demand.     In  all 

*  In  Indiana,  by  statute,  in  case  of  a  false  §  Young  v.  Hosmei-,  11  Mass.  89. 

return  to  a  writ  of  ^/ieri  facias,  the  constable  ||  Brooks  v.  Hoyt,  6  Pick.  468;    Shackford 

and  his  sureties  are  liable  on  the  bond,  for  the  i*.  Goodwin,  13  Mass.  187  ;  Nye  v.  Smith,  11 

fiill  amount  which  the  officer  might  have  col-  Mass.  188. 

lected  and  paid  over,  with  interest   and   ten  IT  Weld  v.  Bartlett,  10  Mass.  470.     Though 

per  cent,  damages.     R.  S.   1838,   148;   Lira-  in  this  case  it  was  intimated  that  the  limit  of 

pus  r.  The  State,  7  Blackf  43.  the  discretion  of  the  jury,  even  in  case  of  will- 

t  Weld   V.   Bartlett,    10    Mass.   470 ;    and  ful  wrong,  is  merely  "  expenses  and  costs  not 

Colby  V.  Sampson,  5  Mass.  310.  taxable."     See  also,   Selfridge  v.  Lithgow,  2 

I  Rich  V.  Bell,    16   Mass.  294.     See   also,  Mass.  374. 
Burrell  v.  Lithgow,  2  Mass.  526. 

1  Former  page  520. 

2  Where  a  constal)le,  having  received  a  writ  with  directions  to  arrest  tbe  defendant  named  in 
it,  returned  it  unexecuted  under  a  mistaken  idea  that  he  was  entitled  to  indemnity,  and  the  de- 
fendant remained  jiublicly  living  in  the  State  for  some  months,  and  the  ])]aintiff  might  have 
issued  another  writ  and  arrested  him,  it  was  held  in  Vermont  that  these  facts  should  have  been 
submitted  to  the  jury  in  mitigation  of  damages.  Blodgett  v.  Brattleboro',  30  Vt.  (1  Shaw) 
579. 


602  SUITS   AGAINST    PUBLIC    OFFICERS.  [ciI.    XXI. 

actions  on  the  case,  the  question  is,  what  is  the  amount  of  dam- 
ages sustained."  * 

Actions  for  taking  Insufficient  Suerties.  —  It  is  a  general 
principle  that  in  an  action  against  a  sheriff  for  taking  insufficient 
sureties,  no  more  can  be  recovered  against  him  than  the  party 
could  have  recovered  against  sufficient  sureties.!^  And  in  an 
action  against  the  sheriff  for  taking  insufficient  sureties  in  re- 
plevin, the  assignee  of  the  replevin  bond  cannot  recover  as  spe- 
cial damage,  beyond  the  limits  of  the  bond,  the  expenses  of  a 
fruitless  action  against  the  pledgees,  unless  he  gave  the  sheriff 
notice  of  his  intention  to  sue  them.J 

Exemplary  Damages.  —  In  these  cases  it  will  be  noticed 
[520^]  that  the  relief  does  not  go  beyond  the  amount  of  loss 
actually  sustained.  But  it  would  seem,  if  actual  malice, 
fraud,  or  oppression  can  be  shown  on  the  part  of  the  officer,  that 
it  would  be  competent  for  the  jury  to  go  beyond  the  line  of 
compensation  for  actual  injury,  and  award  vindictive  or  exem- 
plary damages ;  and  so  it  has  been  frequently  held,  although  we 
have  seen  a  contrary  intimation  in  New  York.^ 

In  Connecticut,  it  was  originally  decided,  that  an  officer  who 
had  been  guilty  of  neglect  in  not  serving  mesne  process,  should 
be  liable  for  the  whole  debt ;  a  rule  which  has  been  there  char- 

*  West  V.  Rice,  9  Met.  564.  receipt   or  promise   to    redeliver,  which   not 

t  Yea  r.  Lethbridge,  4  T.  R.  4.33  ;  Evans  being  done  suit  was  brought;  it  was  objected 

V.  Brander,  2  H.  Bl.  547.     By  this,  Concanen  that,  as  it  was  not  stated  in  the  declaration 

V.  Lethbridge,  2  H.  Bl.  36,  was  overruled.  See  that  the  officer  was  commanded,  in  the  writ 

also,  Jeffery  v.  Bastard,  4  A.  &  Ellis,  823.  against  the  original  debtor,  to  attach  to  any 

J  Baker  i\  Garratt,  3  Bing.  56.     See  Gibbs  certain  amount,    the   plaintiff  could   only  re- 

V.  Bull,  20  J.  R.  212,  a  suit  for  taking  insuffi-  cover   nominal   damages  ;    but   the   Supreme 

cient  pledges  in  replevin.  Court  held  otherwise,  and  that  the  omission 

In  Connecticut,  where  the  plaintiff,  an  offi-  did  not  preclude  the  plaintiff  from  a  recovery 

cer  who  had,  bj^  virtue  of  an  execution,  levied  to   the  amount   of    the  execution.     Jones  v. 

on  goods  belonging  to  the  judgment  debtor,  Gilbert,  13  Conn.  R.  507. 
and  delivered  them  to  the  defendants  on  their 

1  Mortland  v.  Smith,  32  Mo.  225.  In  an  action  on  the  case  against  the  sheriff,  for  taking 
insufficient  bail,  it  is  competent  for  the  defendant  to  prove  in  mitigation  of  damages,  the  ina- 
bility of  the  original  debtor  to  pay  the  judgment  which  has  been  obtained  against  him  in  the 
suit  upon  which  he  was  arrested.  The  true  measure  of  damages  is  the  injury  actually  sus- 
tained by  the  judgment  creditor;  and  therefore  evidence  tending  to  show  that  the  debtor  was 
poor  or  insolvent,  so  that  his  arrest  on  execution  would  not  have  enabled  the  creditor  to  real- 
ize his  dcl)t,  also  tends  to  prove  that  the  plaintiff  suffered  no  essential  injury  by  the  negli- 
gence of  the  officer.     Danforth  i'.  Pratt,  9  Cush.  (Mass.)  318. 

Where  a  judicial  officer  is  acting  ministerially,  he  is  liable  for  the  damage  directly  resulting 
from  his  negligence.  In  such  case  the  rules  of  liability  and  mitigation  are  the  same  with  those 
applicable  to  ministerial  officers.  And  a  magistrate  liable  for  the  damages  directly  result- 
ing from  his  negligence  in  issuing  an  irregular  or  invalid  execution,  may,  in  an  action  brought 
for  the  recovciy  of  such  damage,  show  that  the  judgment  debtor  had  no  property,  and  that 
the  debt  could  not  have  been  collected  on  a  valid  execution.     Noxon  r.  Hill,  2  Allen,  215. 

2  Former  page  518. 

3  In  California,  an  officer  is  no  less  liable  to  exemplary  damages  for  the  consequences  of  a 
malicious  act  than  a  private  person.     Nightingale  v.  Scannell,  18  Cal.  315. 


CH.    XXI.]  EXEMPLARY    DAMAGES.  G03 

acterized  "as  one  of  stern  policy,  rather  than  of  exact  justice  ; " 
and  it  is  now  well  settled  that  the  plaintiff  can  only  recover  the 
damages  he  has  sustained.  "  But  these  damages  it  is  peculiarly 
the  duty  of  the  jury  to  assess,  and  in  so  doing  they  are  not  lim- 
ited to  any  precise  sum ;  they  may  even  give  more  than  the 
plaintiff's  original  debt.  When  that  debt  has  been  lost  by  the 
willful  misconduct  or  negligence  of  the  officer,  they  may  add  to 
it  the  costs  of  a  second  suit ;  and  as  the  jury  may  give  more 
than  the  debt,  so  may  they  give  less.  If  it  should  be  found  by 
them,  that  the  failure  of  the  officer  to  return  a  writ  was  owing 
to  a  mere  mistake,  in  consequence  of  which  the  party  had  suf- 
fered nothing,  they  might  give,  and  indeed  it  would  be  their 
duty  to  give,  only  nominal  damages."  * 

Illegal  Acts. — We  have  hitherto  been  examining  cases  [521] 
where  the  public  officer  is  charged  with  neglect  in  not 
executing  process  confided  to  him.  There  is  another  large  class 
of  cases,  where  the  complaint  is  that  he  has  overstepped  his 
powers,  and  abused  the  process  of  the  court.  In  these  cases  we 
shall  find,  that  where  the  acts  of  public  officers  are  illegal,  they 
are  very  narrowly  watched,  and  often,  by  the  infliction  of  vin- 
dictive damages,  severely  punished  for  the  abuse  of  their  trust ; 
so,  where  trespass  was  brought  for  breaking  and  entering  the 
plaintiff's  house,  and  taking  his  goods,  it  appearing  that  judg- 
ment had  been  obtained  in  a  court  of  local  jurisdiction,  and  that 
execution  was  illegally  levied  on  property  of  the  plaintiff  out  of 
the  jurisdiction,  it  was  held  that  the  plaintiff  was  entitled  to  re- 
cover the  amount  paid  by  him  to  release  the  levy.  It  was  in- 
sisted that,  as  the  plaintiff  clearly  owed  the  debt,  this  rule  could 
not  apply.  But  Lord  Denman,  C.  J.,  said,  "  A  person  who  takes 
upon  himself  to  extort  money  by  an  authority  which  he  does 
not  possess,  must  repay  the  money  which  he  receives  thereby." 
And  Patterson,  J.,  said,  "  I  am  afraid  of  admitting  the  principle 
contended  for,  that  where  money  has  been  extorted  by  means 
of  an  illegal  authority,  the  measure  of  damages  is  to  be  merely 
the  amount  of  injury  actually  sustained."  f 

So  where  the  defendant,  acting  under  color  of  a  ca.  sa.,  was 
found  guilty  of  an  assault  and  battery  and  false  imprisonment, 
Lord  Abinger,  on  a  motion  to  reduce  the  damages,  said,  "I 
think,  if  I  had  tried  the  cause,  I  should  probably  have  said  that 
if  parties  knowing  what  the  law  is  wantonly  violate  it,  the  jury 

*  Palmer  r.  Gallnp,  16  Conn.  555;  Dnryee     Gleason  v.  Chester,   1  Day,  152;  Hubbard  r. 
V.  Webb,  cited  in  notes  to  this  case.     See  Clark     Shaler,  2  Day,  195. 

V.  Smith,  9  Conn,  380,  as  to  previous  rule.         t  Champion  v.  White,  2  Nev.  &  Perry,  627  ; 

S.  C.  6  Adol.  &  E.  407. 


604  SUITS    AGAINST   PUBLIC    OFFICERS,  [CH.    XXI. 

should  not  be  sparing  in  the  damages.  It  is  the  safest  way  to 
say  that  he  who  knowingly  violates  the  law  in  one  respect  must 
take  all  the  consequences."  *  So  in  a  recent  case  where  the  de- 
fendants, under  color  of  process,  illegally  broke  into  the  plain- 
tiff's house   to  levy  an  execution,  and  the  plaintiff  paid  the 

amount  due  on  the  writ,  under  protest,  to  induce  the  de- 
[522]  fendants  to  withdraw  ;  the  jury  gave  the  amount  so  paid 

and  £500  besides  damages ;  a  motion  was  made  to  reduce 
the  damages,  but  the  court  said, "  The  trespasses  were  of  a  very 
serious  nature,  having  been  committed  by  officers  of  the  law, 
under  color  of  the  law,  breaking  open  the  door  with  great  vio- 
lence. Such  conduct  is  calculated  to  lead  to  dangerous  conflicts ; 
and  the  proper  amount  of  damages  must  depend  so  much  on  the 
general  circumstances,  that  it  is  very  difficult  to  discover  any 
standard  by  which  to  measure  the  amount ;  much  must  be  left 
to  the  discretion  of  the  jury.f  ^ 

So  in  an  action  of  trespass  de  bonis  asportatis,  for  an  illegal 
levy,  it  was  held  "  that  the  jury  might  give  vindictive  damages 
if  they  should  find  that  the  trespass  was  committed  maliciously, 
and  in  a  wanton  and  aggravated  manner,  and  with  a  design  to 
vex  and  injure  the  plaintiff."  X 

Compensation  Furnishes  the  General  Rule,  although  the 
Action  is  in  Tort.  —  On  the  other  hand,  the  following  case  in 
Pennsylvania  is  a  strong  one,  to  show  with  what  vigilance  the 
courts  adhere  to  the  principle  of  applying  a  fixed  rule,  even  in 
actions  for  tort.§  It  was  trespass  against  the  defendants  for  a 
levy  u]3on  certain  horses  claimed  by  plaintiff  under  an  execution 
against  a  third  party ;  and  it  appeared  that  the  latter  had  made 
a  conditional  purchase  of  the  horses  from  the  plaintiff,  whose 
property  they  were  to  remain  till  fully  paid  for.  Part  had  been 
paid.  The  court  told  the  jury  "  to  find  for  the  plaintiff  the  value 
of  the  property  taken,  and  interest,  and  such  further  amount  as, 
under  all  the  circumstances  of  the  case  as  argued  by  the  counsel 
before  you,  you  may  think  him  entitled  to  demand,  if  any." 
But  on  error,  this  was  held  wrong :  — 

"  From  this  instruction,"  said  tlie  Supreme  Court,  "  we  entirely  dissent.  It 
appears  in  evidence  that  the  vendee  had  paid  at  least  part  of  the  price,  and,  so 

*  Kerby  v.  Denbv,  1  M.  &  W.  336  ;  Tyrwh.         J  Huntley  v.  Bacon,  15  Conn.  271. 
&  Gr.  688.  "  §  Rose  v.  Storj-,  1  Barr,  State  R.  191. 

t  Duke  of  Brunswick  v.  Slowman,  8  Man. 
Gr.  &  Scott,  317. 

1  See  the  cases  of  distress,  arising  under  English  statutes,  cited  post,  537,  note. 


CH.    XXI.]  MITIGATION    OF   DAMAGES.  605 

far  as  it  appears  to  ns,  a  considerable  part  of  it.  Tlic  vendor  nnd  vendee  stand, 
therefore,  in  this  position  at  the  time  of  seizure  and  sale :  the  vendor  had  the 
legal  title,  the  vendee  an  equity  to  the  amount  he  had  paid.  But  by  the  in- 
struction of  the  court,  the  vendor  recovers  not  only  the  value  of  his  own  interest, 
but  the  interest  of  the  vendee  also.  Now,  this  cannot  be  ;  for  the  only  just  rule 
of  compensation  will  be  to  remunerate  him  for  the  amount  of  injury  he  has  sus- 
tained, which  is  commensurate  with  his  interest  in  the  chattel.  Beyond  that, 
ujion  no  principle  of  law  or  equity  is  the  jury  permitted  to  go,  unless  in  cases  of 
gross  oppression  or  aggravation,  when  the  jury  may  mulct  a  party  with 
vindictive  damages.  But  this  is  a  case  for  compensatory,  and  not  vin-  r.5231 
dictive  damages,  as  clearly  appears  from  the  evidence.  We  also  think 
that  the  latter  part  of  the  instruction  is  highly  objectionable.  The  court  allows 
the  jury  to  give  such  further  damages  as,  under  all  the  circumstances  of  the  case 
as  argued  by  the  counsel,  they  might  think  them  entitled  to  demand.  This  is 
giving  them  a  discretionary  power,  without  stint  or  limit,  highly  dangerous  to 
the  rights  of  the  defendants ;  it  is  leaving  them  without  any  rule  whatever. 
The  rights  of  the  defendants  are  made  to  depend  on  the  arbitrary  will  of  the  jury, 
of  the  effects  of  which  this  verdict  presents  a  warning  example.  Nothing  ap- 
pears which  should  swell  the  damages  beyond  the  value  of  the  interest  which  the 
vendee  had  in  the  property  sold  by  the  constable."  ^ 

Suits  between  Different  Officers.  —  Questions  of  the  kind 
we  are  now  considering  frequently  arise  in  suits  brought  by  one 
officer  against  another  to  test  the  relative  priority  of  different 
processes;  and  in  such  a  case  it  has  been  said,  in  Vermont, 
that  damages  are  never  given  beyond  the  actual  value  of  the 
property.* 

Mitigation  in  Actions  for  Negligent  and  "Wrongful  Acts. — 
In  regard  to  mitigation  of  damages  in  these  actions,  it  has  been 
held  in  Maine,  in  a  suit  against  a  sheriff  for  not  safely  keej^ing 
jDroperty  attached  on  mesne  process,  that  the  plaintiff  was  en- 
titled to  recover  the  full  value  of  the  property  seized,  and  that 
the  damages  could  not  be  mitigated  by  deducting  the  expenses 
which  would  have  necessarily  attended  the  keeping,  had  it  been 
kept  safely.f  ^     And  in  Pennsylvania,  it  has  been  held  in  trespass 

*  Goodman  v.  Church,  20  Verm.  187.  t  Lovcjoy  v.  Hutchins,  23  Maine,  272. 

1  In  Iowa,  in  an  action  of  trespass  for  breaking  into  the  plaintiff's  close,  and  taking  certain 
liquors  which  had  been  adjudged  to  be  forfeited  in  a  judicial  proceeding  to  which  the  plaintiff 
was  a  party,  it  was  held  that  he  could  not  recover  the  vahie  of  the  liquors,  and  if  the  defend- 
ants acted  in  good  faith,  he  could  recover  nominal  damages  only.  Plummer  v.  Harbut,  5 
Clarke  (Iowa),  308. 

2  In  the  same  State,  where  the  officer,  by  selling  the  attached  property  within  the  period 
presci-ibed  by  law,  had  become  a  trespasser  ab  initio,  and  it  did  not  apjjear  that  judgment  had 
been  or  would  be  rendered  in  the  original  suit,  and  the  proceeds  of  the  sale  of  the  attached 
property  applied  on  the  execution,  the  defendant  was  held  not  entitled  to  a  reduction  of  dam- 
ages.    Ross  V.  Philbrick,  39  Maine,  29. 


606  SUITS    AGAINST   PUBLIC    OFFICERS.  [CH.    XXI. 

against  a  sheriff  for  seizing  and  selling  the  plaintiff's  goods 
under  a  judgment  against  another  person,  that  the  amount  paid 
out  of  the  proceeds  of  sale  for  rent  of  the  premises,  cannot  be 
received  in  evidence  to  abate  the  damages.*^ 

Receiptors.  —  In  some  of  the  States  of  the  Union,  property 
when  levied  on  is  sometimes  delivered  by  the  attaching  officer 
to  a  third  party,  called  a  receiptor,  who  holds  it  during  the  liti- 
gation, and  promises  to  redeliver  it  to  the  officer  on  demand. 
In  a  case  of  this  kind  in  Vermont,  the  plaintiff,  whose  property 
had  been  unduly  levied  on  instead  of  that  of  the  real  debtor, 
brought  his  action  of  trespass,  and,  'pendci'de  lite,  assigned  his 
claim  to  the  receiptor.  Judgment  was  afterwards  obtained  and 
execution  issued  in  the  suits  in  which  the  attachment  had  been 
issued,  and  the  officer  demanded  the  property  of  the 
[524]  receiptor;  but  he  refused  to  deliver  it.  It  was  held 
that  the  defendants,  on  the  trial  of  the  action  of  trespass, 
were  not  entitled  to  give  in  evidence,  in  mitigation  of  damages, 
such  refusal  on  the  part  of  the  receiptor,  they  never  having 
offered  to  surrender  to  him  his  receipt,  or  discharge  him  from 
his  liability  thereon ;  f  and  the  same  point  has  been  similarly 
decided  in  Massachusetts.:]: 

In  another  case  of  this  kind,  it  has  been  decided  in  Vermont, 

*  Dallam  v.  Fitler,  6   Watts  &  Serg.  323.         t  Ellis  v.  Howard,  17  Verm.  330. 
See  also,  ^IcMichael  v.  Mason,  13  Peiin.  State        %  Robinson  v.  Mansfield,  13  Pick.  139. 
R.  214. 

1  A  sheriff  who  has  wrongfully  levied  upon  and  sold  the  goods  of  plaintiff  cannot  show 
in  mitigation  of  damages  that  he  has  applied  the  proceeds  of  the  sale  to  the  payment  of  a 
debt  of  the  plaintiff.  McMichael  v.  Mason,  13  Penn.  St.  214.  See  Ohio  v.  Jones,  21  Wend. 
594,  post,  549.  But  in  New  Jersey  the  rule  is  otherwise.  Hopple  v.  Higbee,  3  Zabr.  (N.  J.) 
342. 

In  a  suit  upon  a  forfeited  delivery  bond,  given  by  the  claimants  of  property  seized  under 
execution  against  another,  the  defendants  cannot  be  permitted  to  show  in  mitigation  of  dam- 
ages that  the  property  belonged  to  them.     Waterman  v.  Frank,  21  Mo.  108. 

In  trespass  brought  by  the  assignee  of  a  mortgage  of  personal  property  against  an  officer  for 
taking  the  property  on  an  execution  against  the  mortgagor,  and  holding  it  till  the  assignee 
paid  the  execution  and  officer's  fees,  the  measure  of  damages  is  the  amount  paid  and  interest, 
besides  a  reasonable  compensation  for  the  taking  and  detention.  Carijcnter  v.  Cummings,  40 
N.  H.  158.     See  Felton  v.  Fuller,  35  N.  H.  226. 

Where  one  sued  a  sheriff  who  had  taken  personal  property  from  him  under  a  void  writ, 
in  a  replevin  suit,  his  damages  were  held  not  to  be  affected  by  the  amount  of  the  judgment 
in  the  replevin  suit,  to  which  he  was  not  shown  to  be  privy.  Rathbun  v.  Ranncy,  14  Mich. 
382. 

In  Alabama,  in  an  action  in  the  nature  of  trespass  against  a  sheriff  for  wrongful  levy  of  an 
execution,  the  fact  that  the  goods  were  in  the  possession  of  the  defendant  in  the  execution  at 
the  time  of  the  levy  is  to  be  taken  in  mitigation  of  the  damages.  Sterretts'  Ex'r  v.  Raster  (1 
Ala.  Select  Cases,  404).  This  rule,  it  is  presumed,  is  intended  only  in  reference  to  the  ques- 
tion of  vindictive  damages,  since  the  actual  injury  to  the  plaintiff  is  the  same,  however  excusar 
bly  the  sheriff  may  have  been  misled. 

In  an  action  against  a  former  sheriff  as  for  an  escape,  on  the  ground  of  his  neglect  to  assign 
over  at  the  end  of  his  term  to  his  successor  in  office  a  debtor  taken  in  execution,  who  is  on  the 
jail  limits,  the  plaintiffs  omission. to  cause  the  prisoner  to  be  retaken,  by  issuing  a  new  execu- 
tion, may  be  considered  in  mitigation  of  the  damages.     French  v.  Willct,  10  Bosw.  566. 


V 


CII.    XXI.]  MITIGATION    OF   DAMAGES.  607 

that  where  the  value  of  all  the  property  attached  and  receipted 
for  is  expressed  in  the  receipt  at  one  entire  sum,  and  a  portion 
of  it  has  been  withdrawn  from  the  custody  of  the  receiptor  so  as 
to  discharge  his  liability,  the  damages  in  an  action  on  the  receipt 
are  to  be  determined  by  assuming  the  whole  value  of  the  prop- 
erty receipted  for  to  ])e  the  sum  specified  in  the  receipt,  and  by 
then  ascertaining,  on  the  basis  of  that  assumed  value,  the  just 
proportion  which  the  property  retained  by  the  receiptor  would 
bear  to  the  property  for  which  he  is  not  liable. ' ' 


#1 


False  Returns,  —  Where  suit  is  brought  against  a  sheriff  for 
a  false  return  of  mdla  bona  to  an  execution,^  it  seems  that  an 
inquisition  finding  the  property  out  of  the  original  defendant,  is 
a  bar  to  the  action ;  but  in  a  suit  against  the  officer  in  trespass 
by  the  true  owner,  an  inquisition  finding  the  other  way  is  only 
to  be  received  in  mitigation.! 

In  Massachusetts,  where  a  sheriff  returned  to  the  original 
writ  that  he  had  taken  bail,  and  then  refused  to  deliver  the 
bail-bond,  the  fact  bemg  that  no  bail  had  been  taken,  he  was 
not  permitted  to  show  in  mitigation,  that  the  original  defend- 
ant was  insolvent.^ 

*  Parsons  v.  Strong,  13  Verm.  235;  Allen  T.  E.  621,   633,  648;  Roberts  v.  Thomas,  6 

V.  Oirt)-,  19  Verm.  65.  T.  R.  88;  Wells   v.  Fickman,   7    T.  R.  174, 

t  Bayley  v.  Bates,  8  J.  R.  185;  Townsend  177. 

V.  Phillips,  10  J.  R.  98;  Farr  v.  Newman,  4  f  Simmons  w.  Bradford,  15  Mass.  82. 

1  So  in  New  Hampshire,  where  property  attached  by  the  sheriff  in  two  suits,  was  delivered 
to  a  third  party,  who  gave  two  receipts  for  it  at  the  same  value,  which  did  not,  however,  state 
that  one  was  subject  to  the  other,  and  the  receiptor,  after  judgment  and  execution,  on  a  de- 
mand in  the  first  suit,  paid  the  amount  due  on  the  execution,  it  was  held  after  a  subsequent 
judgment  in  the  second  suit  against  the  owner,  that  the  receiptor  was  liable  only  for  the 
amount  of  the  value  receipted  for  over  that  paid  in  the  first  suit.  Haynes  v.  Tenney,  45  N.  H. 
183. 

Where  the  receiptor  has  allowed  the  attached  property  to  go  into  the  owner's  possession, 
and  judgment  is  recovered  against  him,  in  an  action  by  the  officer  on  the  receipt,  the  amount 
of  the  judgment  and  interest,  with  the  fees  on  execution,  not  exceeding  the  value  of  the  prop- 
erty, are  the  usual  measure  of  damages.  But  if,  while  the  action  is  pending,  the  receiptor 
refuses  to  deliver  the  property  to  the  officer,  the  latter  may  recover  its  full  value  with  interest 
from  the  demand.     Clement  v.  Little,  42  N.  H.  563. 

Where,  in  an  action  of  trover,  the  goods  for  the  value  of  which  the  action  was  brought 
had  been  attached  and  delivered  to  the  defendant  on  his  receipt,  and  he  had  retained  them, 
this  was  held  no  reason  for  reducing  the  damages  below  their  value.  Luckey  v.  Roberts,  25 
Conn.  486. 

An  officer  who  has  attached  property  and  taken  a  receipt  for  it  cannot  show  in  mitigation  of 
damages,  in  an  action  brought  for  his  not  delivering  the  property  or  the  receipt,  that  the  prop- 
erty was  worth  less  than  the  value  alleged  in  his  return.     Allen  v.  Doyle,  33  Me.  420. 

2  For  such  a  false  return,  the  measure  of  damages  is  the  value  of  the  property  which  the 
plaintiff  would  have  been  enabled  to  apply  in  satisf^iction  of  the  execution.  Thayer  o.  Rob- 
erts, 44  Maine,  247.  Where  there  is  property  enough  to  satisfy  the  amount  directed  to  be 
collected  on  the  execution,  that  amount  with  interest  is  the  measure.  The  sheriff  may  show 
in  mitigation,  that  there  was  not  property  enough  to  satisfy  the  demand,  or  that  it  would  have 
been  absorbed  by  prior  executions ;  but  not  that  the  amount  directed  to  be  levied  was  not  due 
on  the  judgment.  Bacon  v.  Cropsey,  3  Seld.  (7  N.  Y.)  195  ;  Forsyth  v.  Dickson,  1  Grant's 
Cas.  (Penn.)  26.  In  Ireland,  for  a  false  return  of  non  est  inventus,  the  analogy  of  escapes  was 
followed,  and  the  value  of  the  custody  was  said  to  be  the  rule.  Cahill  v.  Verner,  2  Ir.  L. 
(2d  series)  549.  As  to  nominal  damages  in  these  actions,  see  Hobson  v.  Thelluson,  2  L.  R.  (Q. 
B.)  642  ;  ante,  513,  note,  and  ante,  note  2. 


608  SUITS   AGAINST   PUBLIC    OFFICERS.  [cil.    XXI. 

Consequential' Damages.  —  In  New  York,  it  has  been  held  that 
where  the  sheriff  so  negligently  conducts  himself  in  regard  to 
pergonal  property  levied  on  that  it  is  lost,  and  in  consequence 
the  real  estate  of  the  defendant  is  sold,  and  the  security  of  a 
mortgage  creditor  is  impaired,  no  action  lies  by  such  mortgage 
creditor  against  the  sheriff,  unless  the  conduct  of  the 
[525]  sheriff  be  explicitly  charged  to  be  fraudulent  and  tviih  in- 
tent to  diminish  the  security  of  the  mortgage  creditors.*^ 

Collectors  and  other  Public  Officers.  —  Questions  of  an 
analogous  nature  to  those  which  we  have  been  considering,  are 
frequently  presented  in  actions  against  public  of&cers  other 
than  sheriffs.  Where  trespass  was  brought  against  the  collec- 
tor of  customs  for  New  York,t  for  illegally  seizing  the  plaintiff's 
vessel,  it  appeared  that  she  was  seized  on  the  2d  October, 
1801,  and  retained  in  custody  till  the  25th  August,  1802,  when 
she  was  restored.  Six  months  before  the  seizure,  the  plaintiff 
had  purchased  her  for  $12,474;  and  the  day  previous  to  the 
trespass,  he  made  a  contract  to  sell  her  for  $9,500.  On  the  2d 
September,  1802,  eight  days  after  her  restoration,  she  was 
finally  sold  at  public  sale  for  $4,288;  the  plaintiff  claimed  the 
sum  of  $9,500  (the  contract  price),  with  interest  and  marshal's 
fees,  deducting  the  price  actually  obtained  at  the  sale,  $4,288 ; 
and  this  was  held  right  by  the  Supreme  Court  of  New  York. 
This  recognizes  the  principle  that  where  an  actual  bargain  is 
interfered  with  by  the  defendant's  tortious  act,  he  shall  be  made 
responsible  for  the  loss  sustained.  It  is  not  a  case  of  mere  con- 
tingent damages  or  speculative  profits  ;  it  is  an  actual  contract 
broken  up  by  an  authorized  act.f  ^ 

*  Bank  of  Rome  v  Mott,  17  Wend.  554.         t  Woodham  v.  Gelston,  1  J.  R.  134. 
See  Yates  v.  Joyce,  11  J.  R.  136.  J  Vide  ante,  82,  520. 

1  Biit  although  consequential  damages  are  not  ordinarily  recovered  against  the  sheriff,  yet 
if  he  fail  in  his  duty  he  is  liable  for  the  consequences  of  injuries  done  by  third  parties  which 
through  his  neglect  they  had  the  opportunity  to  commit.  Thus,  where  one  had  purchased 
certain  premises  on  the  foreclosure  of  a  mortgage,  executed  to  him  by  the  occupants,  and  a 
writ  of  assistance  to  put  the  purchaser  in  possession  thereupon  placed  in  the  sheriff's  hands, 
that  officer  neglected  to  execute  for  two  days,  and  in  the  intervening  time  the  occupants  greatly 
injured  the  premises,  he  was  held  liable  for  the  damage  thus  sustained.  Called  on  to  discharge 
a  duty  which  the  law  enjoined  of  giving  possession  of  property  which  could  only  be  obtained 
through  such  official  action  by  him,  it  was  considered  by  the  court  just  and  legal  that  he 
should  be  held  responsible  to  the  full  extent  of  the  injury.  Chapman  v.  Thornburgh,  17  Cal. 
87. 

But  in  an  action  of  replevin  against  a  sheriff,  damages  sustained  from  depositing  a  sum  of 
money  witli  a  third  party  to  induce  liim  to  become  surety  in  the  replevin  bond  are  altogether 
too  remote  and  inconsequential  to  be  considered.     Wilson  v.  Hillhouse,  14  Iowa,  199. 

2  In  an  action  in  New  York  against  a  county  clerk,  who  by  statute  in  that  State  (Laws 
1853,  ch.  142)  is  liable  for  all  damages  for  mistakes  in  searclies  made  by  him  in  his  office,  it 
appeared  that  in  a  search  made  b}'  him  at  the  requAt  of  a  lawyer  who  had  been  employed  to 
examine  tlie  title  to  a  house  and  lot  belonging  to  the  plaintiff's  intestate  and  paid  by  the 
plaintiff,  a  judgment  of  about  twenty-seven  dollars,  which  was  a  lien  on  the  premises,  had 


CH.    XXI.]  SUITS    ON    OFFICIAL   BONDS.  609 

In  a  recent  action  a":ain.st  a  collector  of  customs,  for  refusino- 
to  sign  a  bill  of  entry  for  landing  a  cargo  of  foreign  wheat,  in 
consequence  of  Avhicli  the  plaintiff  was  obliged  to  -pay  duty  on 
it  Avlien,  in  fact,  no  duty  was  by  law  payable,  the  proper  meas- 
ure of  damages  has  been  held  by  the  King's  Bench  in  England 
to  be,  not  merely  the  amount  of  duties  paid,  but  the  amount  of 
loss  sustained  by  the  plaintiff  in  consequence  of  a  subsequent 
fall  in  the  price  of  the  article.* 

In  an  action  by  the  United  States  against  a  collector  on  his 
official  bond,  for  not  returning  paid  treasury-notes  to  the  proper 
department  at  Washington,  it  has  been  held  that  the  rule  of 
damages  would  be  the  amount  of  the  notes,  unless  it  was  shown 
that  they  were  canceled,  and  that  the  United  States  had  suffered, 
or  was  likely  to  suffer,  less  than  their  amount ;  and  that 
the  jury  were  to  take  into  consideration  the  amount  of  [526] 
damage,  from  the  risk  of  the  notes  getting  into  circulation 
again ;  from  the  delay  and  inconvenience  in  obtaining  vouchers 
to  settle  the  accounts ;  and  from  the  want  of  evidence  at  the 
department  that  the  notes  had  been  redeemed.! 

Property  Sold  Illeg^vlly.  —  In  New  York  it  has  been  held, 
that  where  the  property  of  a  party  is  sold  under  illegal  process, 
and  the  sum  demanded  is  raised  by  a  bid  at  the  sale  of  the 
property,  made  by  an  agent  of  such  party,  who  purchases  for 
the  benefit  of  his  principal,  and  pays  for  the  same  with  the 
money  of  the  principal,  the  measure  of  damages,  in  an  action 
of  trespass  against  trustees  of  a  school  district,  in  such  case,  is 
the  amount  of  the  bid  and  the  interest  thereof,  and  not  the 
value  of  the  property  sold.t^ 

Suits  on  Bonds.  —  The  questions  examined  in  this  chapter 
may  arise,  as  in  the  instances  which  we  have  been  considering, 

*  Barrow  v.  Arnaud,  Feb.  3,  1846,  Jurist,  J  Baker  v.  Freeman,  9  Wend.  36.  See  to 
vol.  X.  p.  319  ;  8  Q.  B.  595.  same  point,  Clark  v.  Hallock,  16  Wend.  607. 

t  U.  S.  y.  Morgan,  11  Howard,  154. 

been  omitted.  The  examination  of  the  title  was  made  for  the  purpose  of  procuring  a  loan  by 
mortgage  on  the  property.  The  money  was  obtained,  and  applied  as  far  as  necessary  to  the 
satisfaction  of  such  liens  as  were  returned  on  the  search.  It  was  more  than  enough  to  satisfy 
them  and  also  the  omitted  judgment.  The  premises,  which  were  worth  $6,000,  were  after- 
wards sold  on  an  execution  on  that  judgment,  and  were  bought  in  by  the  plaintiff  in  the 
execution  for  $60.  By  a  compromise  arrangement,  in  consideration  of  $400,  he  conveyed  the 
premise*  to  the  plaintiff  as  executor  and  trustee  of  the  deceased  owner.  In  a  judgment  which 
was  atfirmed  by  the  Court  of  Appeals,  the  county  clerk  was  held  not  responsible  for  the  loss 
sustained,  as  it  was  directly  caused  by  the  non-payment  of  the  judgment  and  not  by  his 
omission.     Kimball,  Executor,  v.  Connolly,  6  Am.  Law  R.  (N.  S.)"598. 

1  So  in  Missouri,  where  a  collector  of  taxes  illegally  levied  on  and  sold  the  plaintiff's  per- 
sonal property,  and  it  was  bought  by  the  owner  at  the  sale,  the  measure  of  damages  was  held 
to  be  the  price  bid.    Alexander  v.  Helber,  35  Mo.  334. 

39 


610  SUITS   AGAINST   PUBLIC    OFFICERS.  [CH.    XXI. 

in  suits  brought  by  the  aggrieved  party  against  the  officer 
directly ;  or  otherwise,  on  the  bond  given  by  him  for  the  faith- 
ful discharge  of  his  duty  ;  or,  again,  they  may  be  brought 
against  the  sureties  of  the  officer.  In  the  case  of  the  suit  being 
brought  on  the  bond,  much  depends  on  the  form  of  the  instru- 
ment and  the  statute  under  which  it  is  given.  So  in  Ohio,  an 
action  of  debt  being  brought  on  a  sheriff's  bond  for  neglect  to 
sell  property  levied  on,  the  rule  of  damages  was  held  to  be  the 
value  of  the  property  and  not  the  amount  of  the  judgment,  and 
execution  was  only  allowed  to  issue  for  the  former  sum,  the 
language  of  the  statute  under  which  the  bond  was  given  being, 
that  "  execution  might  issue  for  such  sum  as  it  might  be  ascer- 
tained would  be  sufficient  to  indemnify  the  person  so  suing.*  ^ 

Suits  against  Sureties.  —  Where  the  suit  is  brought  against 
a  surety,  the  measure  of  damages  often  presents  very  nice  and 
complicated  questions,  growing  out  of  the  fact  that  the  inquiry 
involves  an  investigation  of  the  violation  of  duty  of  the  princi- 
pal, as  well  as  breach  of  contract  of  the  surety.  In  these  cases 
it  seems  to  be  well  settled,!  that  judgment  against  the  principal 
is  primd  facie  evidence  of  negligence  in  the  suit  against  the 
surety,  at  all  events  where  he  has  had  no  notice  of  the  suit 
being  brought.^ 

*  State  of  Ohio  v.  Myers  et  at.   14   Ohio,        t  Ante,  308,  and  cases  there  cited. 
538. 

1  In  an  action  of  debt  upon  a  sheriff's  bond,  at  common  law  the  whole  penalty  would  be  re- 
coverable ;  but  by  statute  in  many  of  the  States,  no  greater  recovery  can  be  had  than  the 
actual  damage  done.  So  in  Georgia.  Taylor  v.  The  Governor,  cfec.  17  Ga.  521.  In  some  of  the 
States,  judgment  is  rendered  for  the  full  amount,  but  execution  issues  only  for  the  plaintiffs 
damage  proved.  Nelson  v.  Gray,  2  Greene  (Iowa),  397  ;  see  also,  Cameron  v.  Boyle,  Ibid.  154. 
In  a  suit  upon  a  bond  given  under  a  provision  of  a  statutory  enactment  in  Maine,  for  a  breach 
of  its  condition,  where  a  default  was  submitted  to,  held,  that  the  damages  were  to  be 
assessed  by  the  court  and  not  by  the  jury ;  and  the  amount  was  the  actual  damage  sustained 
by  such  breach.  Clifford  w.  Kimball,  39  Me.  413.  So  in  Pennsylvania.  Commonwealth  v. 
Allen,  30  Penn.  49.  In  Maryland,  in  a  suit  on  a  guardian's  bond,  it  was  held  that  the  actual 
loss  suffered  by  the  plaintiffs  furnished  the  measure  of  damages.  State,  use  of  Murray  v. 
Bishop,  24  Md.  310. 

-  Carpenter  v.  Doody,  1  Hilt.  (N.  Y.)  465.  But  in  these  cases,  also,  the  rule  of  "  actual 
loss"  applies.  So  in  an  action  against  the  sheriff's  sureties  for  an  escape,  the  defendants  are 
liable  only  for  the  damages  (to  the  extent  of  the  penalty)  actually  sustained  through  that  offi- 
cer's breach  of  duty.  The  plaintiff  is  not  entitled  as  of  course  to  the  amount  of  his  judgment 
against  the  escaped  debtor.  The  State  ex  rel.  Fellow  v.  Johnson,  1  Ind.  158.  So  in  a  suit 
against  the  surety  on  a  bond  given  in  an  action  of  detinue,  the  condition  of  which  had  been 
broken  by  the  plaintiff'  in  that  action  submitting  to  a  nonsuit,  the  fact  that  he  was  the  owner  of 
the  property  sued  for,  though  no  defense  to  the  action  on  the  bond,  goes  in  mitigation  of  the 
damages.  Savage  v.  Gunter,  32  Ala.  467.  So  in  an  action  on  a  bond  given  to  procure  the  re- 
lease of  a  debtor  from  arrest  on  mesne  process,  the  sum  due  on  the  execution  is  primd  facie 
the  measure  of  damages ;  but  the  defendant  may  show,  that  at  the  time  of  the  breach  the 
debtor  was  without  property.     Sargent  v.  Pomeroy,  33  Me.  388. 

In  a  suit  upon  a  poor  debtor's  bond  the  damages  will  be  the  amount  of  the  judgment  and 
the  costs  of  the  action  in  which  it  was  given,  with  the  interest  thereon.  Richards  v.  Morse,  36 
Ibid.  240;  see  also,  Houghton  v.  Lyford,  39  Me.  267.  The  same  is  the  measure  on  a  prison- 
bounds  bond,  in  Virginia.     McGuire  v.  Pierce,  9  Gratt.  (Va.)  167. 


CH.  xxl]  suits  on  official  bonds.  611 

In  a  case  in  Massachusetts,  bronglit  against  the  sure-  [527] 
ties  of  a  constable's  bond,  where  the  breach  assigned  was 
an  illegal  levy,  and  it  appeared  doubtful  whether  all  the  prop- 
erty in  question  was  taken  colore  officii,  a  verdict  being  taken 
for  the  penalty  of  the  bond,  the  court  said,  "  If  it  appears  that 
any  of  the  property  was  taken  by  color  of  oflftce,  as  it  no  doubt 
does  here,  that  shows  an  official  misfeasance,  which  is  a  breach 
of  the  bond,  and  entitles  the  plaintiff  to  judgment  as  for  such 
breach.  But  when  it  comes  to  the  assessment  of  damages,  and 
it  is  open  to  question  whether  the  trespass,  for  which  judgment 
was  recovered  in  the  action  of  trespass,  was  done  by  color  of 
office,  it  will  no  doubt  be  competent  to  the  court  or  jury  who 
assess  the  damages  to  ascertain  what  part  of  the  property  was 
so  taken ;  for  it  is  that  part  only  which  is  in  question  in  the 
suit."  It  was  also  held  that  the  fact  that  the  goods  levied  on 
had  been  mortgaged  by  a  previous  owner  before  the  levy,  and 
that  they  had  been  delivered  by  the  constable  to  the  mortgagee 
on  his  demand,  was  no  defense  to  the  action ;  but  that  upon  a 
hearing  in  equity,  this  evidence  would  be  admissible  in  reduc- 
tion of  damages.* 

*  City  of  Lowell  v.  Parker,   10  Met.  309.  395  ;  Patten  v.  Halstead,  1  Coxe,  277  ;  Gerrish 

As  to  cases  in  other  States,  see  State  Treas-  v.  Edson  1  N.  H.  R.  82  ;  Webster  v.  Quiinby, 

iirer  v.   Weeks,  4   Verm.  21.5;    Governor  v.  8  N.  H.  R.  382  ;  Bruce  v.  Petteni,nll,  12  N.  H. 

Matlock,  1    Hawks,   425;    Duncan   v.  Kline-  R.  341;  Peverly  u.  Sayles,  10  N.  H.  R.  356  ; 

felter,  5  Watts,  144  ;  Hazard  v.  Israel,  1  Binn.  Sawyer  u.  Wliittier,  2  N.  H.  R.  315  ;  Sanborn 

240;    Shewell  v.  Fell,   3  Yeates,    17;    S.    C.  r.  Enaerson,  12  N.  H.  R.  58  ;  Richards  ?;.  Gil- 

4  Yeates,  47  ;   Eaton  v.  Ogier,  2   Greenleaf,  more,  11  N.  H.  R.  493;  Runlet  v.  Bell,  5  N. 

46  ;    Ri,i,^gs   et    al.    v.  Thatcher,  1    Greenleaf,  H.  R.  433  ;  Perkins  v.  Thompson,  3  N.  H.  R. 

68;  Gibson  v.  The  Governor,  11  Leigh,  600;  144;  Cady  v.  Huntington,  1   N.  H.  R.  138; 

Brugh   V.    Shanks,    5  Leigh,    598 ;  Rootes  v.  Taylor  v.  Commonwealth,  3  Bibb,  356 ;  Ack- 

Stone,  2  Leigh,  650;  Smith  v.  Hart,  2  Bay,  ley  v.  Chester,  5  Day,  221. 


\ 


CHAPTER  XXIL 

THE   MEASURE   OF    DAMAGES    IN    CASES    OP     TRESPASS    TO    PERSON   OR   TO 

PROPERTY. 

In  every  Case  of  Trespass,  Damages  are  recoverable  vrhether  the  Act  was  Inten- 
tional or  Accidental.  —  But  if  no  Aggravation  is  shown,  the  Rule  of  Damages 
is  generally  a  Question  of  Law.  —  Case  or  Trespass  for  Injuries  to  Property. 
—  Decisions  examined.  —  Mitigation.  —  Case  or  Trespass  for  Injuries  to  Per- 
son. —  Libel  and  Slander.  —  Slander  to  Title.  —  Seduction.  —  Criminal  Con- 
versation. —  Breach  of  Promise.  —  Enticing  Servants.  —  Malicious  Prosecu- 
tion. —  Decisions  examined.  —  Mitigation.  —  Case  or  Trespass  where  Fraud 
is  averred.  —  Fraud  in  Sale  of  Lands.  —  Mitigation  and  Recoupment.  —  Gen- 
eral Principles. 

We  proceed  now  to  examine  the  measure  of  damages  for 
those  remaining  wrongs,  either  to  the  person  or  personal  prop- 
erty, which  are  redressed  by  tlie  actions  of  case  and  trespass ; 
proceedings  which  are  so  closely  allied  to  each  other,  and  the 
line  which  separates  them  so  difficult  to  define,  that  for  our 
present  purpose  it  will  be  more  convenient  to  treat  them  to- 
gether. 

The  Trespasser  is  Responsible  for  his  Trespass  although 
Unintentional.  —  We  have  already  had  occasion  to  notice*  that 
in  all  cases  of  trespass,  although  purely  unintentional,  unless 
caused  by  absolutely  inevitable  accident,  the  party  in  default 
must  resj^ond  in  damages  ;  and  that  the  intent  is  only  material 
in  ao-o-ravation  or  mitio-ation  of  damao;es.  We  have  seen  that 
in  cases  of  contract  the  motive  of  the  defendant  is  not  inquired 
into  to  augment  the  remuneration  to  be  made  by  him.  On  the 
other  hand,  in  cases  of  trespass  the  absence  of  evil  motive  can- 
not be  set  up  as  an  excuse  so  far  as  to  bar  the  action.  "  I  had 
learned,"  says  Lord  Kenyon,  "from  Lord  Bacon's  maxims,  that 
there  is  a  distinction  between  answering  civiliter  and  crminaliter 
for  acts  injurious  to  others :  in  the  latter  case  the  maxim  ap- 
plied is  actus  non  facit  reum  nisi  mens  sit  rea ;  but  it  is  otherwise 
in  civil  actions,  where  the  intent  is  immaterial  if  the  act  done 
be  injurious  to  another."!     And  so  says  Mr.  Chitty,  "Where 

*  Chapter  xviii.  p.  453.  f  Haycraft  v.  Creasy,  2  East,  92. 


en.    XXII.]       WRONGS   TO    PERSON   AND   PERSONAL    PROPERTY.  613 

the  act  occasioning  an  injury  is  unlawful,  the  intent  of  [520] 
the  wrong-doer  is  immaterial."*^ 

The  Measure  of  Relief  for  Wrongs  to  Person  and  Personal 
Property  is  independent  of  the  Form  of  the  Action.  —  It  fol- 
lows, from  what  has  been  said,  that  in  the  cases  of  wrongs  such 
as  Ave  now  proceed  to  consider,  the  measure  of  relief  does  not 
depend  on  the  form  of  the  action  ;  whether  case  or  trespass  be 
employed,  if  no  aggravation  be  proved,  the  rule  of  damages  is 
a  question  of  law ;  ^  and  it  is  competent  in  either  proceeding, 
to  show  those  circumstances  of  evil  motive  which,  as  we  have 
already  seen,  go  to  place  the  subject  of  relief  largely  within  the 
control  of  the  jury.  In  regard  to  this  class  of  cases  generally, 
it  will  be  noticed  that  the  object  is  to  limit  relief  to  compensa- 
tion, as  that  term  is  legally  understood ;  ^  and  we  shall  find, 
therefore,  that  while  the  power  of  the  jury  over  the  subject  in 
cases  of  aggravation  is  fully  recognized,  still,  even  where  such 
facts  are  presented,  if  evidence  has  been  admitted  or  directions 
given  at  the  trial,  which,  had  the  intention  of  the  jury  been  to 
give  compensatory  and  not  vindictive  damages,  would  have 
been  incorrect,  the  court,  assuming  that  such  was  the  purpose 
of  the  jury,  will  exercise  their  control  over  the  subject.  "-We 
consider  the  law,"  says  the  Superior  Court  of  New  York,  "as 
properly  and  wisely  settled  that  the  quantum  of  damages,  with 
the  exception  of  cases  in  which  exemplary  or  vindictive  dam- 
ages may  properly  be  given,  is  strictly  a  question  of  law ;  so 
that  the  jury  are  bound  by  the  rule  which  the  judge  directs 
them  to  follow."  t  This  will  appear  by  the  cases  which  we  now 
proceed  to  examine.     And  a  convenient  division  of  the  subject 

*  Chitty  on  Pleadings,  vol.  i.  p.  147.  Duer,  J.     See  also,  Baker  v.  Wheeler,  8  Wen- 

t  Suydam  v.  Jenkins,  3  Sandford,  628,  per     dell,  505. 

1  But  in  cases  of  personal  wrongs,  although  the  damages,  as  in  other  actions,  are  in  theory, 
regulated  by  a  principle  of  law,  namely  legal  compensation,  yet  the  law  does  not  in  the  partic- 
ular case  fix  the  actual  amount.  The  determination  of  this  is  left  to  the  jury,  subject  to  no 
other  control  than  is  to  be  found  in  the  power  of  the  court  to  set  aside  the  verdict  where  it  is 
the  obvious  result  of  passion,  prejudice,  or  corruption,  or  conflicts  with  some  established  rule 
of  law.     See  Little  v.  Tingle,  26  Ind.  168. 

2  If  a  party  intending  to  commit  a  trespass  on  public  lands,  through  mistake  cuts  down  trees 
on  the  land  of  another  person,  he  is  liable  to  the  penalty  for  such  trespass.  Otherwise,  if  he 
intended  to  cut  timber  on  his  own  lands,  but  by  mistake  should  cut  timber  on  the  land  of 
another.  In  such  a  case  he  would  not  be  liable  to  the  penalty,  but  only  for  the  actual  damage 
done.     Perkins  v.  Hackleman,  26  Miss.  41. 

^  But  the  compensation  allowed  for  such  trespasses,  although  excluding  vindictive  damages, 
is  not  confined  to  making  good  the  pecuniary  loss  merely,  —  the  injury  to  the  defendant  often 
consists  in  whole  or  in  part  of  the  inconvenience  and  annoyance  to  which  the  plaintiff  is  sub- 
jected, the  invasion  of  his  privacy,  and  the  interference  with  his  comfort.  For  wrongs  of  this 
class,  equally  with  pecuniary  loss,  he  is  entitled  to  equivalent  damages.  Ives  v.  Humphreys,  1 
E.  D.  Smith  (N.  Y.),  196.  So  the  plaintift'  is  entitled  to  be  compensated  for  the  breaking  up  of 
a  business  shown  to  be  profitable.  But  loss  of  profits  expected  from  an  illegal  business  cannot 
be  included.     Kane  v.  Johnston,  9  Bosw.  (N.  Y.)  154.     See^josf,  563,  note.  ' 


614  TRESPASS   TO    PERSON    OR   PROPERTY.  [CIL    XXII. 

appears  to  be  produced  by  grouping  together,  first,  those 
actions  where  case  or  trespass  is  brought  for  injuries  to  per- 
sonal property;  secondly,  those  where  redress  is  claimed  for 
injuries  to  the  person;  and  lastly,  where  actual  fraud  is  com- 
plained of. 

The  Action  for  Injuries  to  Property  may  be  maintained  by 
Special  Owners  and  Lienors^  as  well  as  General  Owners. — 
It  may  not  be  improper  to  make  some  preliminary  observations 
as  to  the  right  in  which  the  action  is  brought,  so  far  as  it 
affects  the  question  of  damages.  In  all  cases  the  absolute  or 
general  owner  of  personal  property,  whose  rights  are  infringed, 
can  maintain  the  action.     So  can  the  special  owner.^     And  in 

this  country  the  rights  of  another  class  of  parties  inter- 
[530]  ested   have   been   recognized.     So   where    a   defendant 

fraudulently  removed  buildings  of  a  judgment  debtor 
from  certain  premises  on  which  the  judgment  was  a  lien,  with 
intent  to  defeat  the  lien  of  the  plaintiff's  judgment,  it  was  held 
that  the  plaintiff  was  entitled  to  recover.  And  so  a  mortgagee 
can  recover  against  a  party  for  wrongfully  removing  buildings 
from  the  mortgaged  premises,  or  for  any  fraudulent  injury  to 
the  value  of  the  premises.  But  in  cases  of  this  description,  the 
plaintiff  must  show  that  he  necessarily  suffered  damage  by  the  act 
complained  of;  in  other  words,  that  there  was  not  property 
enough  left  to  satisfy  the  execution  or  the  mortgage.*^ 

*  Yates  V.  Joyce,  11  J.  R.  136;  Lane  r.  held  that  the  principle  allowing  a  recovery  in 
Hitchcock,  14  J.  R.  213  ;  Marsh  v.  White,  3  cases  of  this  kind  must  be  limited  to  real  prop- 
Barb.  S.  C.  R.  518;  Gardner  v.  Heartt,  3  erty;  and  that  for  similar  injury  to  personal 
Denio,  232  ;  but  not  for  mere  negligent  injury,  property  levied  on,  the  suit  must  be  brought  in 
In  Barker  v.  Mathews,  1  Denio,  335,  it  was  the  name  of  the  party  making  the  levy. 


1  Although  this  word  is  not  yet  found  in  the  dictionaries,  it  is  making  its  way,  and  we  ven- 
ture to  use  it,  not  knowing  any  exact  equivalent. 

^  The  special  owner  in  general  recovers  only  the  value  of  his  interest.  Brierly  v.  Kendall, 
10  Eng.  L.  &  E.  319  ;  S.  C.  17  Q.  B.  937  ;  16  Jur.  449.  Where,  on  the  execution  of  a  writ  of 
inquiry  after  judgment  by  defjiult  in  trespass  for  taking  personal  property,  the  defendant  is 
estopped  from  showing  the  plaintiff  had  not  such  a  title  as  would  authorize  a  recovery,  he  may 
yet  show  in  mitigation  of  the  damage  that  the  plaintiff  was  not  the  owner.  Sterrett's  Ex'r  v. 
Kaster,  1  Ala.  Select  Cases,  404. 

3  Where  the  action  is  brought  by  a  mortgagee  for  a  trespass  on  the  mortgaged  premises,  or 
when  the  purchaser  of  real  estate  has  paid  part  of  the  purchase-money  and  been  put  in  pos- 
session, and  the  action  is  brought  by  the  grantor,  who  retains  a  lien  for  the  iinpaid  balance  of 
the  purchase-money,  the  measure  of  damages  is  the  injury  to  the  security,  not  the  vahie  of 
trees  cut  down  or  other  property  removed  by  the  trespasser.  See  State  v.  Weston,  17  Wis. 
107.  Where,  under  an  execution  against  a  mortgagor  of  chattels  rightfully  in  possession,  the 
chattels  are,  without  notice  to  the  mortgagee,  sold  to  various  purchasers  so  as  to  injure  or  sac- 
rifice the  interest  of  the  mortgagee,  although  the  latter  cannot  maintain  an  action  in  the 
nature  of  trespass  or  trover  for  the  value  of  the  goods,  he  may,  it  seems,  in  an  action  in  the 
nature  of  case,  recover  damages  to  the  extent  of  the  injury  to  his  revei'sionary  interest. 
Goulet  V.  Asseler,  22  N.  Y.  225.  In  such  an  action  by  a  mortgagee  against  the  receiver  of  the 
mortgaged  projierty  and  others  for  an  injury  to  his  reversionary  interest,  the  damages  should 


CH.    XXII.]     V.VLUE    OF   THE   PROPERTY    THE   USUAL    MEASURE.  615 

Compensation  the  General  Rule.  —  We  proceed  now  to  no- 
tice the  general  rules  which  govern  in  trespass  for  taking  per- 
sonal property,  or  as  it  is  technically  called  in  the  language 
of  the  common  law,  trespass  de  bonis  asportaik.  And,  as  we 
have  said,  although  this  is  eminently  an  action  where,  in  case 
of  evil  motive,  the  damages  are  under  the  control  of  the  jury, 
and  although  for  that  purpose  all  the  circumstances  of  the 
transaction  may  be  given  in  evidence,  still  the  determination 
of  which  I  have  spoken,  to  adhere  to  the  rule  of  compensation, 
has  been  frequently  made  manifest. 

The  Value  of  the  Property  if  destroyed  and  the  Actual 
and  Direct  Injury  in  other  Cases  the  Usual  Measure.  —  It 
has  been  often  decided,  that  where  trespass  is  brought  for  per- 
sonal property,  and  no  circumstances  of  aggravation  are  shown, 
the  action  is  to  be  regarded  as  one  of  trover,  and  the  value  of 
the  property  with  interest  furnishes  the  measure  of  damages.^ 

In  Maine,  in  an  action  of  trespass  de  bonis  asportatis,  it  was 
ruled  at  the  trial,  that  the  jury  should  give  the  value  of  the 

be  confined  to  the  loss  he  has  suffered  by  the  dispersion  of  the  property  among  the  several 
purchasers.     Manning  v.  Monaghan,  28  N.  Y.  585.     See  ante,  482,  note  2. 

In  an  indenture  of  sale,  a  covenant  was  inserted  stipulating  that  the  deed  should  be  void 
upon  payment  of  a  certain  sum  of  money  upon  a  day  to  be  named  by  the  assignees,  of  which 
twenty-four  hours'  notice  was  to  be  given.  The  assignees  having  entered  and  sold  the  prop- 
erty within  twenty-four  hours  from  the  time  of  serving  such  notice,  it  was  held  that  they  were 
liable  in  trespass,  but  that  the  measui-e  of  damages  should  be,  not  the  value  of  the  goods,  but 
the  value  of  the  plaintiff's  interest  in  them  at  the  time  of  the  trespass.  Brierly  v.  Kendall,  17 
Q.  B.  937  ;  S.  C.  10  Eng.  L.  &  E.  319. 

1  State  V.  Smith,  31  Mo.  566;  Josey  v.  Wilmington  and  Manch.  R.  R.  11  S.  C.  Law  R. 
(Rich.)  399  ;  Dorsey  v.  Manlove,  14  Cal.  553  ;  Campbell  v.  Woodworth,  26  Barb.  648  ;  Derby 
V.  Gallup,  5  Minn.  119  ;  Gilson  v.  Wood,  20  111.  37  ;  Warren  v.  Cole,  15  Mich.  265.  See  ante, 
477.  Walker  u.  Borland,  21  Mo.  289  ;  Funk  v.  Dillon,  Ibid.  294 ;  Tarborough  v.  Nettles,  7  La. 
Ann.  116;  Hopple  u.  Higbee,  3  Zabr.  (N.J.)  342;  Hair  v.  Little,  28  Ala.  236;  OutcaUw. 
Durling,  1  Duteher  (N.  J.),  443.  The  market  value  of  the  property,  not  its  value  to  the  plain- 
tiff, is  the  measure.  Gardner  v.  Field,  1  Gray  (Mass.),  151;  Gray  w.  Stevens,  82  Vt.  1.  A 
verdict,  therefore,  for  profits  which  might  have  been  made  on  the  goods  wrongfully  taken,  in 
addition  to  their  value,  is  erroneous.  Butler  v.  Collins,  12  Cal.  457.  So  in  such  a  case  is  the 
allowance  of  the  expenses  of  the  litigation  as  damages.  St.  Peter's  Church  v.  Beach,  26  Conn. 
355;  Warren  z;.  Cole,  15  Mich.  265  (supra);  unless  where  exemplary  damages  are  proper. 
Dibble  v.  Morris,  26  Conn.  416.  So  is  a  charge  to  the  jury  that  the  defendant  must  make  the 
plaintiff  good  for  all  the  actual  injury  sustained  by  him  at  his  hands  resulting  directly  and 
naturally  therefrom.  Oviatt  v.  Pond,  29  Conn.  479.  And  the  rule  in  the  text  is  the  same 
where  the  action  is  brought  by  an  assignee  for  the  benefit  of  creditors,  although  the  time  lim- 
ited by  law  for  the  presentation  of  claims  has  expired,  and  the  value  of  the  property  taken 
would  be  more  than  enough  to  pay  them.  The  legal  title  being  in  the  plaintiff,  the  rule  of 
damages  is  not  affected  by  the  fact  that  he  holds  it  as  trustee.  Garretson  v.  Brown,  2  Dutch. 
(N.  J.)  425.  But  if  the  property  is  not  removed  or  destroyed,  but  is  injured,  the  rule  of  com- 
pensation gives  the  damage  actually  sustained  as  the  measure.  And  where  the  plaintiff's 
horse  was  injured  through  the  negligence  of  the  defendant's  servant,  the  measure  of  damages 
was  held  to  be  the  expense  of  the  veterinary  treatment  of  the  horse,  the  value  of  his  services 
during  the  period  of  his  disability,  and  the  amount  of  the  difference,  if  any,  between  his  value 
before  the  injury  and  after  the  cure.     Street  v.  Laumier,  34  Missouri,  469. 

Reversal  of  Judgment.  —  Where  an  execution  has  been  levied  on  chattels,  real  or  per- 
sonal, and,  after  a  sale,  the  judgment  is  reversed,  the  amount  to  be  recovered  is  that  raised  by 
the  sale.  Where  on  the  other  hand  in  such  case,  the  goods  themselves  are  delivered  to  the 
judgment  creditor,  they  must  be  restored.     2  Tidd  Prac.  1186,  1187  ;  Bac.  Ab.  Execution,  Q. 


616  TRESPASS   TO    PERSON    OR   PROPERTY.  [CH.    XXII. 

[531]  property  at  the  time  it  was  taken,  and  something  for  the 
detention.     But   on   motion   for   a   new   trial,   the    court 
said,  — 

"  For  an  injury  done  to  property,  such  as  is  this  case,  the  value  of  the  prop- 
erty at  the  time  of  the  injury  is  the  measure  of  damages.  There  may  be  cir- 
cumstances enhancing  that  value  to  the  party  injured,  which  may  be  properly 
taken  into  account.  To  the  value  here,  interest  might  be  added  as  a  part  of  the 
plaintiff's  indemnity.  But  as  the  term  interest  was  not  used,  and  probably  not 
intended  as  the  limit  of  damages  for  detention,  the  jury  were  at  liberty  to  go  into 
an  estimate  of  the  probable  or  speculative  loss  the  plaintiff  might  have  sustained 
on  this  ground.  In  our  judgment,  the  instruction  was  too  vague  and  loose,  and 
had  a  tendency  to  mislead  the  jury."  *  ^ 

So  in  Texas,  in  an  action  of  tortious  conversion  analogous  to 
that  of  trover,  where,  although  there  was  no  other  evidence  of 
damage  than  the  value  of  the  property,  and  no  proof  of  fraud, 
violence,  or  malice,  yet  the  jury  had  given  double  the  value,  the 
verdict  was  set  aside.f 

In  an  action  of  trespass,  on  the  Pennsylvania  circuit,  the 
whole  subject  was  very  ably  discussed  by  Mr.  Justice  Baldwin.^ 
The  plaintiffs  lent  $60,000  to  one  E.  Thompson,  who  took  bills  of 
lading  of  a  cargo  of  teas,  and  assigned  them  to  the  plaintiffs. 
The  teas  bought  were  shipped  to  Philadelphia,  where  they  were 
taken  on  a  fieri  facias  at  the  suit  of  the  United  States  against 
Thompson.  The  defendant  was  the  marshal  who  made  the  levy. 
As  to  the  rule  of  damage,  it  being  settled  §  that  the  plaintiffs 
were  the  legal  owners  of  the  teas  and  not  to  be  regarded  as  mere 
mortgagees,  Baldwin,  J.,  charged  the  jury  as  follows:  — 

"  The  rule  which  ought  to  govern  jurors  in  assessing  damages  for  injuries  to 
personal  property,  depends  much  on  the  circumstances  of  the  case.  When  a 
trespass  is  committed  in  a  wanton,  rude,  and  aggravated  manner,  indi- 
[5321  eating  malice,  or  a  desire  to  injure,  a  jury  ought  to  be  liberal  in  com- 
pensating the  party  injured,  in  all  he  has  lost  in  property,  in  expenses 
for  the  assertion  of  his  rights,  in  feeling  or  reputation  ;  and  even  this  may  be 
exceeded  by  setting  a  public  example  to  prevent  a  repetition  of  the  act.  In  such 
cases,  there  is  no  certain  fixed  standard ;  for  a  jury  may  properly  take  into  view 
not  only  what  is  due  to  the  party  complaining,  but  to  the  public,  by  inflicting 
what  are  called  in  law,  speculative,  exemplary,  or  vindictive  damages.  But 
when  an  individual  acting  in  pursuance  of  what  he  conceived  a  just  claim  to 
property,  proceeds  by  legal  process  to  enforce  it,  and  causes  a  levy  to  be  made 

*  Brannin  v.  Johnson,  19  Maine,  361.  win,  138.     See  Conard  v.  Atlantic  Co.  1  Pe- 

t  Smith  V.  Sherwood,  2  Texas  R.  220.  ters,  386  ;  Nicoll  v.  Conard,  4  Peters,  291. 

X  Pacific  Insurance  Co.  v.  Conard,  1  Bald-        §  1  Peters,  386,  and  4  Peters,  291. 

1  See  Schindel  v.  Schindel,  12  Md.  108. 


en.    XXII.]  ■  CONSEQUENTIAL   LOSS.  617 

on  what  is  claimed  by  another,  without  abusing  or  perverting  its  true  object, 
there  is  and  ought  to  be  a  very  different  rule,  if  after  a  due  course  of  legal  inves- 
tigation, his  case  is  not  well  founded.  This  is  what  must  necessarily  happen  in 
all  judicial  proceedings,  fairly  and  properly  conducted,  which  are  instituted  to  try 
contested  rights  to  property.  The  value  of  the  property  taken,  with  interest  from 
the  time  of  the  taking  down  to  the  trial,  is  generally  considered  as  the  extent  of 
the  damages  sustained  ;  and  this  is  deemed  legal  compensation,  which  refers  solely 
to  the  injury  done  to  the  ■property  taken,  and  not  to  any  collateral  or  consequential 
damages  resulting  to  the  owner,  by  the  trespass.  These  are  taken  into  considera- 
tion only  in  a  case  more  or  less  aggravated.  But  where  the  party  taking  the 
property  of  another  by  legal  process,  acts  in  the  fair  pursuit  of  his  supposed  legal 
right,  the  only  reparation  he  is  bound  to  make  to  the  party  who  turns  out  ulti- 
mately to  be  injured,  is  to  place  him,  as  to  the  property,  in  the  same  situation  in 
which  he  was  before  the  trespass  was  committed.  The  costs  of  the  action  are 
the  only  penalty  imposed  by  the  law,  which  limits  and  regulates  the  items  and 
amount.  In  the  present  case,  the  defendant  acted  under  the  orders  of  the  gov- 
ernment, in  execution  of  his  duties  as  a  public  officer ;  he  made  the  levy,  but  com- 
mitted no  act  beyond  the  strictest  line  of  his  duty,  which  placed  him  in  a  situation 
where  he  had  no  discretion.  The  result  has  been  unfortunate  for  him ;  he  has 
taken  the  property  of  the  plaintiffs  for  the  debt  of  Edward  Thompson,  and  must 
make  theiji  compensation  for  the  injury  they  have  sustained  thereby,  but  no 
further. 

"It  has  long  since  been  well  settled,  that  a  jury  ought  in  no  case  to  find 
exemplary  damages  against  a  public  officer,  acting  in  obedience  to  orders  from 
the  government,  without  any  circumstance  of  aggravation,  if  he  violates  the  law 
in  making  a  seizure  of  property.  In  the  ease  of  Nicoll  against  the  present 
defendant.  Judge  Washington  instructed  the  jury  that  they  might  give  the  plain- 
tiff such  damages  as  he  had  proved  himself  to  be  justly  entitled  to,  on  account  of 
any  actual  injury  he  had  proved  to  their  satisfaction  he  had  sustained  by  the 
seizure  and  detention  of  the  property  levied  on ;  but  that  they  ought  not  to  give 
vindictive,  imaginary,  or  speculative  damages.  The  affirmance  of  his  charge 
makes  it  the  guide  for  us  in  this  case.  Our  true  inquiry,  then,  must  be :  what 
damages  have  the  plaintiffs  so  proved  themselves  to  be  entitled  to  ? 

"  There  can  be  no  doubt  that  they  have  a  right  to  the  value  of  the  teas  at 
the  time  of  the  levy,  with  interest  from  the  expiration  of  the  usual  credit  on 
extensive  sales.  You  may  ascertain  the  value  from  the  sales  made  at  New  York 
or  this  place,  in  the  spring  of  1826.  If,  in  your  opinion,  they  afford  evidence  of 
their  real  value,  or  if  you  are  satisfied  from  the  evidence  you  have  heard, 
that  the  seizure  and  storing  of  these  teas  had  the  effect  of  depressing  the  fSSSl 
prices,  you  may  make  such  additions  to  the  prices  at  which  sales  were 
actually  made,  as  would  make  them  equal  to  what  they  would  have  been  had  they 
come  to  the  possession  of  the  plaintiffs  at  the  time  of  the  levy 

"  It  is  in  the  sound  discretion  of  courts  of  admiralty  to  allow  or  refuse  coun- 
sel fees,  according  to  the  nature  of  the  case,  either  as  damages  or  a  part  of  the 
costs,  as  in  the  case  of  the  Apollo  ;  but  by  a  late  case,  they  were  allowed  as  costs 


618  TRESPASS    TO   PERSON   OR   PROPERTY.  [CH.    XXII. 

in  a  case  vvliei'e  it  was  adjudged  by  the  Supreme  Court  that  no  damages  could  be 
claimed.  They  form  an  item  of  costs  in  such  courts,  but  not  in  courts  of  com- 
mon law.  It  would  be  legislation  by  the  common-law  courts,  to  order  them  to 
be  taxed  as  costs.  The  expenses  of  prosecuting  claims  of  the  present  description 
do  not  come  within  the  principles  established  by  the  courts  in  causes  of  admiralty 
jurisdiction,  but  seem  to  be  considered  as  extra  damages,  beyond  the  value  and 
interest,  where  there  is  aggravation,  but  not  otherwise. 

"  I  think  it  is  a  safe  rule  in  common-law  actions  of  trespass,  and  can  perceive 
no  sound  reason  for  holding  a  marshal  to  a  harder  rule  of  damage  than  a  naval 
or  revenue  officer,  or  the  owner  of  a  privateer.  The  same  principle  ought  to 
govern  all  alike ;  or  if  any  discrimination  prevails,  it  should  be  in  favor  of  the 
defendant,  who  could  use  no  discretion,  but  was  bound  to  do  the  act  which  has 
exposed  him  to  this  action. 

"  The  case  of  Woodham  v.  Gelston  (1  J.  R.  137)  seems  to  me  to  be  based  on 
this  rule  ;  and  the  damages  recovered  in  that  case  were  only  such  as  related  to 
the  property.  The  marshal's  fees  were  for  seizing  and  keeping  possession  of  the 
vessel.  On  the  restoration  to  the  plaintiff,  he  paid  them  ;  they  were  a  charge  on 
the  property,  in  the  nature  of  storage  and  bailment.  In  sanctioning  this  item, 
the  court  seem  to  put  it  on  the  ground  of  its  being  a  charge  on  the  defendant ; 
and  having  been  paid  by  the  plaintiff,  he  was  entitled  to  recover  it  back.  But 
they  say,  if  it  had  been  a  mere  voluntary  payment,  a  deduction  would  have  been 
proper.  The  other  items  were  for  wharfage  and  ship-keeping,  which  were  dis- 
allowed, because  they  were  after  the  restoration.  These  were  all  the  claims  for 
expenses  presented  in  that  case,  and  they  all  attached  to  the  property  taken  ;  none 
related  to  personal  expenses  in  prosecuting  the  suit. 

"  In  declaring  that  voluntary  payments  shall  be  deducted,  the  court  settled  the 
principle  as  to  the  right  to  charge  for  the  marshal's  fees.  They  held  the  juiy  to 
strict  rules ;  for  they  struck  out  an  item  of  compound  interest  allowed  by  the 
verdict. 

"  On  the  principle  of  this  case  of  "Woodham  v.  Gelston,  the  charges  of  the 
auction  sales  are  allowable ;  because  such  sale  had  become  necessary,  and  the 
expenses  thereof  became  a  charge  on  the  teas.  Also  fire  insurance,  which  is  a 
substitute  for  bailment,  and  the  premiums  paid  in  place  of  storage. 

"  It  is  all  important  that,  in  matters  of  this  kind,  the  principle  which  governs 
them  should  be  fixed  and  uniform.  If  we  once  begin  to  diverge  from  the  old 
line,  it  will  be  difficult  to  draw  and  define  a  new  one  with  accuracy.  It  may  be 
thought  a  hardship  that  the  plaintiffs  shall  not  be  allowed  their  actual  disburse- 
ments in  recovering  this  property ;  but  the  hardship  is  equally  great  in 
r534'|  a  suit  for  money  lent,  or  to  recover  possession  of  land  ;  they  are  deemed 
in  law  losses  without  injury,  for  which  no  legal  remedy  is  afforded. 

"  I  am  therefore  of  opinion  that  you  cannot,  in  assessing  damages  in  this  case, 
allow  any  of  the  items  claimed  by  the  plaintiffs  for  disbursements ;  they  being 
consequential  losses  only,  and  not  the  actual  or  direct  injury  to  their  property 
which  they  have  sustained  by  its  seizure  and  detention,  for  which  alone  they  are 
entitled  to  recover  damages  in  this  case,  it  not  being  attended  with  any  circum- 


CH.    XXII.]  WHO    CAN   RECOVER   FULL   VALUE.  619 

stances  of  aggravation  on  the  part  of  the  defendant.  Had  there  been  any  such,  a 
very  different  rule  would  have  been  applied,  by  reimbursing  the  plaintiffs  to  the 
full  extent  of  all  their  expenses  and  consequential  losses. 

"  You  will,  then,  carefully  weigh  all  the  evidence  in  the  cause,  and  ascertain 
the  true  value  of  the  teas  at  the  time  of  the  levy,  or  when  they  could  have  come 
into  market  by  the  rules  of  the  custom-house,  if  there  had  been  no  claim  asserted 
to  them  by  the  United  States  other  than  for  the  duties  with  interest ;  deducting 
therefrom  the  net  amount  of  sales  after  payment  of  duties  and  charges  of  sales, 
the  balance  will  be  the  amount  to  which  the  plaintiffs  will  be  entitled."  * 

Where  there  is  a  Right  of  Action  the  Jury  have  no  Discre- 
tion TO  give  less  than  the  Value  destroyed.  —  In  an  early  case 
in  Pennsylvania,  for  running  down  a  ship,  it  was  intimated  that 
where  the  act  complained  of  was  purely  fortuitous,  the  jury 
might  give  less  than  the  value  of  the  property ;  but  I  suppose 
no  such  discretion  exists.  If  there  be  any  right  of  action,  the 
least  compensation  is  certainly  the  value  of  property  taken  or 
destroyed.! 

In  a  case  in  Massachusetts,  trespass  was  brought  for  [535] 
destroying  game-cocks,  which  had  been  taken  by  a  public 
officer  acting  on  an  erroneous  construction  of  the  statute  against 
gaming.  It  was  held  that  though  cock-fighting  is  in  that  State 
illegal,  the  sale  of  game-cocks  is  lawful ;  and  that  the  measure 
of  the  plaintiff's  damages  was  "  what  the  cocks  were  worth  to 
him  as  articles  of  merchandise  or  sale,  whether  the  market  for 
them  was  to  be  found  in  that  commonwealth  or  elsewhere.^: 

Exceptions.  —  In  New  York,  however,  it  has  been  held  that 
in  an  action  on  the  case  for  the  wrongful  detention  of  personal 
property,  the  plaintiff  might  recover  damages  for  the  time  lost 
and  expenses  incurred  in  pursuit  of  the  property .§  ^ 

Trustees  and  others  Responsible  for  Goods  can  recover  Full 
Value.  —  As  to  the  plaintiff's  title,  it  has  been  held  at  Nisi  Prius, 
where  he  was  a  collector  and  transmitter  of  small  parcels  and 
responsible  for  their  safe  delivery,  that  he  could  recover  the  full 
value  against  a  railway  company,  in  an  action  of  case  for  negli- 

*  See  this  case  cited  with  approbation  in  an  J  Coolidge  v.  Choate,  11  Met.  79. 

analogous  case  in  Iowa.     Thomas  v.  Isett,  1  §  Bennett   v.   Lockwood,    20   Wend.   223. 

Iowa,  470.  Vide  a7ite,  525. 

t  Bussy  V.  Donaldson,  4  Dall.  206. 

1  So  in  Massachusetts,  in  an  action  for  the  abduction  of  the  plaintiff's  minor  child,  although 
no  malice  is  alleged.  Rice  v.  Nickerson,  9  Allen,  478.  So  where  the  property  of  which  the 
plaintiff  has  been  deprived,  has  a  productive  value  to  the  possessor  beyond  mere  interest,  the 
value  of  the  use  during  the  period  of  the  detention  is  actual  damage  recoverable  in  the  action 
bcvond  the  value  of  the  property.  Haviland  v.  Parker  (see  ante,  475,  476,  note  1),  11  Mich. 
103. 


620  TRESPASS    TO    PERSON    OR   PROPERTY.  [CH.    XXH. 

gence,  on  the  ground  of  his  liability  to  pay  their  value  to  the 
true  owner  whether  he  had  actually  paid  it  or  not  *  ^ 

Time  of  Computing  Value.  —  We  have  already,  in  treating  of 
the  action  of  trover,  discussed  the  question  as  to  the  time  when 
the  value  rs  to  be  computed,  whether  at  the  time  of  the  illegal 
act,  or  at  any  subsequent  period  if  the  value  has  fluctuated ; 
and  the  same  question  presents  itself  in  actions  of  trespass.  In 
the  case  just  cited,  it  seems  to  have  been  assumed  that  the 
period  fixing  the  right  of  the  parties  was  that  of  the  trespass, 
and  it  has  been  so  stated  by  the  Supreme  Court  of  New  York;  t 
but  on  neither  of  these  occasions  was  the  question  raised  ;  and 
whenever  it  shall  appear  that  after  the  illegal  act  the  price  has 
risen,  and  the  defendant  has  received  the  proceeds,  or  otherwise 
had  the  benefit  of  the  property  at  its  advanced  value,  the  tribu- 
nals will  find  great  difficulty  in  escaping  from  the  necessity  of 
taking  the  highest  value  up  to  the  time  of  trial  as  the  rule  of 
compensation.^ 

English  Cases.  —  The  following  English  cases  serve  to  illus- 
trate the  subject.  They  exhibit  an  inclination  to  treat  the 
wrong-doer,  even  when  not  actuated  by  any  malicious  motive, 
with  considerable  severity.  Where  the  assignees  of  a  bankrupt 
sold  fixtures  on  leased  premises  belonging  to  the  plaintiff,  for 
.£36,  a  fair  price  on  such  sale,  but  it  was  shown  that  as  between 
incoming  and  outgoing  tenant  the  value  would  have  been  £80, 
it  was  held  that  the  plaintiff  was  entitled  te  recover  the  latter 
sum.$  Where  trespass  was  brought  for  taking  goods,  the  plain- 
tiff had,  shortly  before  the  alleged  trespass,  taken  possession  of 
the  house,  fixtures,  and  furniture  in  question,  under  an  assign- 
ment from  one  Mason.  The  plaintiff  paid  £109  15^.  lOcl  for  the 
fixtures  and  goods  :  the  defendant,  a  sheriff,  entered,  and  under 
color  of  an  execution  against  Mason  sold  them  for  £73.  The 
plaintiff  had  himself  previously  ordered  the  goods  to  be  sold. 
The  judge  who  tried  the  cause,  Gurney,  B.,  told  the  jury  that 
the  least  they  could  give  the  plaintiff  was  the  sum  he  had  paid 
for  the  goods.  On  a  motion  for  a  new  trial,  it  was  insisted  that, 
as  the  plaintiff  had  directed  the  goods  to  be  sold,  the  sheriff's 

*  Crouch  V.  London  &  N.  W.  Railway  Co.        t  Brizsce  v.  Mavbee,  21  Wcnd.  144. 
2  Car.  &  Kir.  789.  t  Tliompson  v.  Pettitt,  10  Q.  B.  R.  101. 

1  In  trespass  for  injury  to  personal  property,  owned  by  the  plaintiffs  jointly  with  other  co- 
tenants,  damages  may  be  recovered  in  proportion  to  the  plaintiffs'  ownership.  Jones  v. 
Lowell,  35  Me.  538. 

2  See  ante,  480,  note  1. 


CH.    XXII.]  ENGLISH    CASES.  621 

sale  could  not  damnify  him,  and  the  jury  should  therefore  have 
assessed  the  damages  at  the  amount  which  the  goods  produced, 
less  the  expense  of  the  sale.  But  Alderson,  B.,  said,  "  It  was 
entirely  a  question  for  the  jury,  what  damages  they  would  allow. 
Juries  have  not  much  compassion  for  trespassers ;  and  I  do  not 
think  they  were  bound  to  weigh  in  golden  scales  4:iow  much 
injury  a  party  has  sustained  by  a  trespass."  ^ 

In  another  case  of  trespass  de  bonis  asportatis*  the  plaintiff 
had  purchased  goods  of  the  defendant,  and  owed  him 
£67.  The  plaintiff  went  off  secretly  ;  the  defendant  fol-  [536] 
lowed  him  and  took  off  property,  to  about  £50  or  £60, 
which  the  defendant  had  previously  sold  him.  The  judge  who 
tried  the  cause,  told  the  jury  that  in  estimating  the  damages, 
they  might  take  into  consideration  all  the  circumstances  of  the 
case,  and  amongst  others  the  plaintiff's  debts  to  defendant, 
which  would  be  reduced,  ^ro  tanto,  by  the  value  of  the  goods 
taken  away.  The  jury  found  for  the  defendant ;  and  on  motion 
for  a  new  trial,  the  charge  was  held  wrong.  "  It  would  lead," 
said  Abinger  C.  B.,  "  to  this  consequence,  that  a  party  may  set 
off  a  debt  due  in  one  case  against  damages  in  another."  Aider- 
son,  B.,  said,  "It  is  equivalent  to  allowing  a  set-off  in  trespass  j" 
and  the  rule  for  a  new  trial  was  made  absolute.!  ^ 

In  another  case,  where  a  sheriff  had  wrongfully  seized  goods 
which  were  afterwards  taken  from  him  by  another  wrong-doer, 
and  the  plaintiff  was  compelled  to  pay  a  sum  of  money  to  extri- 
cate them  from  the  possession  of  the  last  taker,  it  was  held  that 
he  might  recover  the  sum  paid  in  an  action  against  the  sheriff, 
althous^h  in  nowise  connected  with  the  second  conversion  of  the 

*  Gillard  v.  Brittan,  8  Mees.  &  Wels.  575.  with  nominal  damages  for  the  trespass  to  the 

t  Where  trespass  was  brought  for  bi-caking  house,  it  was  held,  on  motion  to  increase  the 

and   entering    the    plaintift''s  dwelling-house,  damages,  that  the  plaintiff  was  not  entitled  to 

and  taking  away  certain  goods,  not  alleging  damages  also  for  the  value  of  the  goods,  as 

them  to  be  the  plaintiff's  (plea  not  guilty  by  they  were  not  alleged  to  be  the  property  of  the 

statute),  the  judge  at  the  trial  having  directed  plaintiff.     Pritchard  v.  Long,  9  Mees.  &  AVels. 

the  jury- to  find  a  verdict   for  the  plaintiff,  666. 


1  Where  the  plaintiff,  a  sheriff,  had  by  the  defendant's  orders  wrongfully  attached  certain 
property,  the  defendant  was  held  liable  to  the  sheriff  for  the  wliole  amount  recovered  from  him 
by  the  jjcrson  whose  goods  had  been  seized,  notwithstanding  the  finding  of  the  jury  in  the  ac- 
tion against  the  sheriff  included  damages  for  the  breaking  open  of  the  owner's  store  with  which 
the  defendant  had  nothing  to  do,  the  whole  having  been  an  entire  transaction.  Nelson  v.  Cook, 
19  111.  440. 

-  But  where  a  bill  of  sale  to  secure  a  debt  empowered  the  defendants  to  enter  the  plaintiff's 
house  and  seize  his  goods  immediately  on  demand  in  writing  being  made  to  him,  and  on  his  de- 
fault ;  and  such  demand  was  made,  but  the  entry  and  seizure  were  made  before  reasonable  time 
was  given  the  plaintiff  to  pay  the  demand,  it  was  held  by  the  Court  of  Exchequer  Chamber, 
aflirming  the  judgment  of  the  Queen's  Bench,  that  his  action  for  damages  was  maintainable, 
there  being  no  default  on  his  part,  but  that  the  measure  of  the  damage  would  be  not  the  value 
of  the  goods,  tut  his  interest  at  the  time  of  the  seizure.  Toms  i^.  Wilson,  32  L.  J.  (N.  S.)  Q. 
B.  382.' 


622  TRESPASS    TO   PERSON    OR   PROPERTY.  [CH.    XXII. 

property.*  But  it  appears  very  severe,  to  hold  a  party  not 
actuated  by  any  malicious  motive  responsible  for  the  independ- 
ent acts  of  a  third  party  over  whom  he  has  no  control. 

Illegal  Distress.  —  In  case  for  an  illegal  distress  without  the 
statutory  .appraisement  required,  it  was  intimated  that  the 
measure  of  damasres  would  be  the  difference  between  the  fair 
value  of  the  goods  and  the  amount  of  rent  discharged  by  the 
proceeds  of  the  sale  ;  but  the  point  was  not  decided.!  ^ 

Mining.  —  We  have  already  had  occasion  to  call  the  reader's 
attention  to  the  class  of  cases  growing  out  of  trespasses  to  real 
estate  where  personal  property  is  removed.^     And  in  these  cases 

*  Keene  v.  Dilke,  4  Exch.  388.  t  Wilson  v.  Nightingale,  8  Q.  B.  1034. 

1  This  rule  was  laid  down  in  Knight  v.  Egerton,  7  Exch.  407;  S.  C.  12  Eng.  L.  &  E. 
562. 

In  an  action  on  the  case  for  an  excessive  and  irregular  distress,  under  the  statute  of  11 
George  2,  c.  19,  s.  19,  which  provided  that  any  irregularity  or  unlawful  act  done  by  a 
party  distraining  for  rent  justly  due,  should  not  make  the  distress  itself  unlawful,  but  that  the 
aggrieved  party  should  have  satisfaction  for  the  special  damage  in  an  action  of  trespass  or  on 
the  case,  it  was  held  that  the  measure  of  damages  was  the  yalue  of  the  goods  minus  the  rent. 
Biggins  V.  Goode,  2  Cr.  &  Jer.  364.  To  the  same  effect  was  Proudlove  v.  Twemlow,  1  C.  &  M. 
326. 

In  Harvey  v.  Pocock,  1 1  M.  &  W.  740,  where  the  tenant  sued  for  unlawful  distress,  and  the 
landlord  defended  under  the  same  statute,  it  appeared  that  among  the  property  seized  by  the 
landlord  was  some  that  was  by  law  exempt ;  the  tenant  having  paid  the  rent  and  the  costs  of 
the  distress,  which  was  removed,  was  held  entitled  to  recover  the  actual  damages  sustained  by 
taking  the  goods  which  were  not  distrainable,  but  no  more. 

In  Keen  v.  Priest,  4  H.  &  N.  236,  the  tenant  was  held  by  the  Court  of  Exchequer  entitled  to 
recover  the  full  value  of  sheep  exempt  from  distress  and  illegally  seized. 

Again,  in  a  recent  case  where  the  defendant  put  in  a  distress  by  a  broker,  who,  while  the 
house  was  locked  and  the  family  absent,  got  in  at  the  back  window  and  bi-oke  open  the  door, 
so  that  the  defendant  was  a  trespasser  ab  initio,  it  was  very  properly  held  that  the  tenant  was 
entitled  to  recover  the  value  of  all  the  goods  taken.  Attack  v.  Bramwell,  3  B.  &  S.  520  ;  S.  C. 
32  L.  J.  R.  (N.  S.)  Q.  B.  146. 

But  in  Illinois,  it  is  held  that  if  books  or  papers,  indispensable  to  the  business  of  the  plain- 
tiff, though  of  little  or  no  value  in  market,  are  maliciously  or  wantonly  taken,  it  is  proper  to 
consider  the  fact  in  aggravation  of  damages.  Sherman  v.  Dutch,  16  111.  283.  So  in  Pennsyl- 
vania, it  is  held  that  one  injured  by  an  unlawful  distress  is  entitled  to  such  damages  as  will 
compensate  him.  In  estimating  them  the  jury  may  rightfully  consider  the  amount  of  rent  paid 
by  the  distress.     Mickle  v.  Miles,  1  Grant's  Cases  (Penn.),  320. 

2  In  the  case  of  Jones  v.  Gooday,  8  M.  &  W.  146,  already  referred  to  (ante,  136),  which  was 
an  action  of  trespass  for  cutting  the  plaintiff's  close,  and  carrying  away  his  soil,  it  was  held, 
in  a  decision  which  has  been  repeatedly  followed,  that  the  measure  of  damages  was  not,  as 
was  claimed  by  the  plaintiff",  the  expense  of  restoring  the  premises,  but  the  value  of  the  land 
removed.  But  this  measure  was  adopted  on  the  ground  that  it  compensated  the  plaintiff 
"  for  the  damage  actually  sustained  ; "  and  it  was  expressly  held  that  he  "was  entitled  to  what 
the  land  was  worth  to  him."  The  rule  asked  for  might  have  given  him  an  amount  wholly  dis- 
proportioned  to  the  loss,  as  in  the  instance  suggested  by  Baron  Alderson  in  his  opinion  in  the 
case,  where  one  should  let  the  sea  in  on  another's  land,  and  extensive  engineering  opera- 
tions be  necessary  to  restore  the  land  to  Its  previous  condition  although  it  was  worth  only 
£20. 

But  it  is  evident  from  the  reasoning  of  the  learned  court,  that  the  rule  was  not  intended  to 
apply  where  the  value  of  the  land  taken  does  not  compensate  the  injury.  In  many  cases,  a 
whole  garden  spot,  or  city  lot,  or  other  valuable  piece  of  ground,  might  be  made  nearly  value- 
less to  the  owner  by  taking  from  it  a  strip  of  little  intrinsic  and  independent  value.  The  rule 
is  often  doubtless  a  fair  one,  but  it  should  be  subordinate  to  the  paramount  one  that  the  plain- 
tiff is  to  be  made  good  for  his  actual  injury. 

In  a  late  similar  case  in  Missouri,  where  the  value  of  the  land  taken  was  adopted  as  the  rule 


CH.    XXII.]  ENGLISH    CASES.  623 

a  marked  effort  has  been  shown  to  award  remuneration 
according  to  the  motives  which  actuated  the  defendant.  [537] 
In  a  recent  case  in  the  English  Exchequer,*  the  circum- 
stances were  as  follows:  The  plaintiff  and  defendant  were 
adjoining  proprietors  in  a  coal  district.  The  defendant  had 
worked  his  coal  mine  under  the  plaintiff's  land,  to  an  extent 
exceeding  a  rood,  unintentionally,  as  is  to  be  inferred,  the  con- 
trary not  being  alleged,  and  had  brought  up  a  considerable 
quantity  of  coal.  Trespass  being  brought,  the  defendant  sup- 
posed the  rule  of  damages  to  be  the  value  of  the  coal  in  the  bed, 
or  its  market  value,  less  the  price  of  getting  it  out,  and  paid  into 
court  the  sum  of  £133.  But  Parke,  B.,  who  tried  the  cause, 
said  that  the  plaintiff  would  have  been  entitled  in  an  action  of 
trover  to  the  value  of  the  coal  as  a  chattel,  either  at  the  pit's 
mouth,  or  on  the  canal  bank,  if  the  plaintiff  had  demanded  it  at 
either  place,  and  the  defendant  had  converted  it,  without  allow- 
ing the  defendant  anything  for  having  worked  and  brought  it 
there ;  that  not  having  made  such  a  demand,  and  this  action 
being  trespass,  he  was  entitled  to  the  value  of  the  coal  as  a  chattel 
at  the  time  when  the  defendant  began  to  take  it  away,  that  is, 
as  soon  as  it  existed  as  a  chattel,  which  value  would  be  the  sale- 
price  at  the  pit's  mouth,  after  deducting  the  expenses  of  carry- 
ing the  coals  from  the  place  in  the  mine  where  they  were  got  to 
the  pit's  mouth.^  And  the  jury  adopting  the  above  principle, 
fixed  the  value  of  the  coal,  when  got,  at  £251  9^.  ^d.  Leave 
was  given  to  reduce  the  verdict  (if  the  court  should  be  of  opin- 
ion that  the  proper  measure  of  damages  was  the  value  of  the 
coal  in  the  bed,  which  the  jury  estimated  at  £159)  to  £16,  that 
being  the  difference  between  this  sum  and  the  amount,  £133, 
paid  in  by  the  defendant.  But  the  rule  was  refused,  the  court 
thus  affirming  the  principle  laid  down  at  the  trial.  Lord  Abin- 
ger  said,  "  It  may  seem  a  hardship  that  the  plaintiff  should  make 
this  extra  profit  of  the  coal ;  but  still,  the  rule  of  law  must  pre- 
vail." Parke,  B.,  said,  "  I  am  not  sorry  this  rule  is  adopted ;  it 
will  tend  to  prevent  trespasses  of  this  kind,  which  are  generally 
willful." 

*  Martin  v.  Porter,  5  Mees.  &  Wels.  351. 

on  the  authority  of  Jones  v.  Gooday,  the  court  sustained  a  refusal  of  the  judge  at  Nisi  Prius 
to  charge  that  the  phiintift"  was  only  entitled  to  recover  for  the  actual  damage.  Mueller  v.  St. 
Louis  and  Iron  Mountain  R.  Co.  31  Mo.  262.  This  refusal  would  seem  to  have  been  erroneous 
in  principle,  if  the  point  were  practically  material.  But  the  result  was  free  from  exception,  as 
it  appeared  that  the  value  of  the  land  was  in  fact  in  this  case,  as  in  the  other,  a  full  compensa- 
tion for  the  injury. 

1  In  Pennsylvania,  as  we  have  seen,  the  rule  in  trover  for  petroleum  is  its  value  at 
the  moment  of  separation  from  the  soil.  luer  v.  Peterson,  14  Penn.  St.  357  ;  ante,  484, 
note. 


624  TRESPASS   TO    PERSON    OR   PROPERTY.  [cil.    XXII. 

And  tlie  doctrine  of  this  case  has  been  recently  recognized*^ 
In  a  case  at  Nisi  Prius,  where  a  similar  trespass  was  complained 
of,  Parke,  B.,  told  the  jury  that  if  there  was  fraud  or  negligence 
on  the  part  of  the  plaintiflj  they  might  give  as  damages  under 
one  of  the  counts,  which  was  in  trover,  the  value  of  the 
[538]  coals  at  the  time  they  first  became  chattels,  on  the  prin- 
ciple laid  down  in  Martin  v.  Porter.  But  if  they  thought 
that  the  defendant  was  not  guilty  of  fraud  or  negligence,  but- 
acted  fairly  and  honestly  in  the  full  belief  that  he  had  a  right 
to  do  what  he  did,  they  might  give  the  fair  value  of  the  coals, 
as  if  the  coal  fields  had  been  purchased  from  the  plaintiff;  which 
latter  estimate  was  adopted  by  the  jury.f  The  principle  to  be 
extracted  from  these  cases  is,  that  in  trespass,  if  the  defendant 
has  in  good  faith  increased  the  value  of  the  property,  the  plain- 
tiff shall  not  have  the  benefit  of  his  labor ;  and  this  appears  to 
be  the  rule  in  this  country.^ 

*  Morgan  v.  Powell,  3  Q.  B.  E.  278.  t  Wood  v.  Morewood,  3  Q.  B.  R.  440,  in 

notis.  , 

1  The  same  rule  was  stringently  applied  in  Illinois,  in  the  following  case.  A  company  in 
Chicago,  organized  for  improving  the  real  estate  of  the  corporators,  including  certain  clay 
lands,  by  cutting  therein  canals  or  slips  connecting  with  the  Chicago  River,  leased  a  portion  of 
such  clay  lands  to  a  brick-making  company.  There  was  no  pecuniary  consideration  for  the 
lease,  the  latter  company  undertaking  to  excavate  canals  in  the  demised  premises  in  considera- 
tion of  the  use  of  the  lands  and  the  right  to  the  clay  dug  out.  In  the  prosecution  of  their  op- 
erations, the  lessees,  with  the  knowledge  and  consent  of  the  lessors,  entered  on  other  adjoining 
lands  belonging  to  the  latter,  and  excavated  canals  also  on  the  last-mentioned  premises  in  a 
manner  beneficial  to  the  owners.  In  an  action  by  the  canal-making  company  against  the  brick 
company  for  the  use  and  occupation  of  the  latter  lands,  the  plaintiffs  were  held  entitled  to  re- 
cover the  whole  value  of  the  use,  and  the  defendants  were  not  allowed  to  recoup  for  their  ex- 
cavations. The  measure  of  the  plaintiff's  damages  was  held  to  be,  not  the  excess  of  the  value 
of  the  clay  over  the  cost  of  digging  it,  but  its  worth  to  the  brick  company.  The  Chicago  South 
Branch  Dock  Company  v.  Dunlap,  32  111.  207. 

But  in  the  case  of  Forsyth  v.  Wells,  41  Penn.  291  (already  cited  somewhat  at  large  on  an- 
other point,  ante,  495,  note  4),  the  Supreme  Court  of  Pennsylvania  adopted  the  opposite, 
and,  as  we  think,  the  just  rule,  the  one  which  most  nearly  conforms  to  the  cardinal  principle 
which  in  all  cases,  except  those  involving  willful  wrong  or  gross  neglect,  makes  compensation 
the  standard  by  which  lesser  measures  and  rules  of  damages  are  adjusted. 

So  in  California,  the  damages  for  wrongfully  removing  the  gold-bearing  earth  from  a  claim 
and  extracting  it,  are  the  value  of  the  gold  less  the  expense  of  digging  the  earth  and  separat- 
ing it  from  the  realty  so  as  to  make  it  personal  property.  Maye  v.  Tappan,  23  Cal.  306 ; 
Goller  V.  Fett,  30  Cal.  481.  And  with  great  deference  to  an  opinion  carrying  so  much  author- 
ity as  that  of  Baron  Parke,  we  cannot  think  that  his  suggestion  of  preventing  trespasses  by 
the  rule  he  adopts  has  any  material  bearing.  Where  the  trespass  is  in  fact  willful,  as  he  says 
is  generally  the  case,  the  doctrine  of  exemplary  damages  furnishes  the  means  of  pi'evention,  so 
fixr  as  it  can  be  done  by  a  verdict  of  this  sort.  But  his  rule  as  applied  to  all  trespasses,  inno- 
cent as  well  as  willful,  is,  we  respectfully  submit,  at  variance  with  settled  princij)les,  is  liable 
to  inflict  undeserved  punishment,  and  unnecessarily  gives  the  injured  party  more  than  just 
compensation.  The  directions  to  the  jury  by  the  same  distinguislicd  judge,  in  the  case  of 
Wood  V.  Morewood  (infra),  are  not  open  to  the  same  objection.  The  diftieulty  grows  out  of 
forms  of  action ;  the  measure  should  be  the  actual  injury  sustained,  wherever  that  measure  can 
be  applied. 

2  Where  in  an  action  by  the  landlord  against  his  tenant  for  digging  clay  on  the  demised 
premises,  one  count  of  the  plaintiff's  plaint  was  for  injury  to  the  reversion,  and  the  other  in 
trover  for  the  value  of  the  clay,  and  the  jury  found  that  tlie  removal  of  the  claj'  had  dimin- 
ished the  value  of  the  land  by  £1.56,  and  that  the  value  of  the  clay  as  dug  was  £150,  and  a 
verdict  was  entered  for  the  larger  sum,  —  a  motion  to  increase  the  verdict  by  adding  to  it  the 
sum  of  £150  was  denied  by  the  Iiish  Court  of  Queen's  Bench.     Templemore  t;.  Moore,  15 


ch.  xxii.]  trespasses  to  real  estate.  625 

Other  Trespasses  to  Real  Estate  where  Personal  Property  is 
TAKEN.  —  So  in  Maine,  it  has  been  recently  held  in  conformity 
to  these  decisions,  that  in  trespass  for  logs  cut  1)y  the  defendant 
on  the  lands  of  the  plaintiff,  but  m  good  faith  and  under  an 
erroneous  confidence  in  his  title,  the  measure  of  damages  was 
not  the  value  of  the  logs  at  a  certain  landing-place  to  which 
they  had  been  hauled  by  the  defendant,  but  their  value  the 
moment  they  were  severed  from  the  freehold,  when,  for  the 
first  time,  they  became  a  chattel  so  that  trespass  would  lie  for 
them.  It  was  admitted  that  the  rule  in  trover  was  different ; 
but  there  was  said  to  be  a  strong  equity  in  not  allowing  ex- 
emplary damages  to  be  recovered  against  one  not  conscious  of 
doing  wrong  when  he  took  the  goods  of  another.*  ^ 

So  in  trespass  for  taking  corn,  it  will  not  be  permitted  the 
plaintiff  to  show,  that  in  consequence  of  the  alleged  illegal  act 
he  was  obliged  to  work  as  a  day  laborer  to  obtain  the 
means  to  purchase  more  corn.  "Such  testimony,"  says  [539] 
the  Supreme  Court  of  Alabama,  "  would  tend  to  establish 
a  criterion  of  damages  too  remote  and  disconnected  with  the  act 
done,  and  would  suppose  the  rule  to  fluctuate  with  the  poverty 
of  the  plaintiff,  "f 

In  an  action  on  the  case  in  Massachusetts,  by  the  inhabitants 
of  Lowell  against  the  Boston  and  Lowell  Railroad  Corporation,$ 
it  was  shown  that  the  defendants  cut  across  one  of  the  streets 
in  the  town  of  Lowell ;  and,  not  replacing  proper  barriers  placed 
there  by  the  town  and  removed  by  the  defendants,  two  persons 
fell  into  the  deep  cut  and  were  injured ;  that  the  town  was  sued 
on  its  liability  to  keep  the  highways  in  order,  and  was  obliged 
to  pay  a  large  sum  of  money,  double  damages,  counsel  fees,  etc. 
The  defendants  insisted  that  the  damages  claimed  were  too  re- 
mote, because  the  town,  according  to  the  Massachusetts  statute, 
was  only  liable  for  negligence  (on  which  subject  the  evidence 
seems  to  have  been  that  one  of  the  town's  selectmen  confided 

*  Gushing  v.  Longfellow,  26  Me.  306.     Ex-        t  Sims  v.  Glazener,  14  Ala.  695. 
emplarv  is  here,  of  course,  used  as   synony-         J  23  Pick.  24. 
mous  with  severe,  and  not  as  implying  vindic- 
tive damages. 

Ii'ish  Law  R.  14.     See  the  principle  of  Wood  v.  Morewood  adopted  in  equity.     Hilton  v. 
Woods,  4  L.  R.  Eq.  432. 

1  In  an  action  for  trespass  for  cutting  down  timber  trees,  the  rule  of  damages  is  the  value  of 
the  timber  when  it  is  first  cut  down,  and  becomes  a  chattel.  Bennett  v.  Thompson,  13  Ired. 
(N.  C.)  L.  146  ;  Smith  v.  Gonder,  22  Ga.  353.  Compare  Chipman  v.  Hibbcrd,  G  Cal.  162.  If 
the  action  is  to  recover  damages  for  the  destruction  of  the  trees  by  negligence,  and  their  value 
can  be  ascertained  without  reference  to  the  soil  on  which  they  stood,  such  value  furnishes  the 
measure.  Whitbeck  v.  N.  Y.  Cent.  R.  Co.  36  Barb.  (N.  X-)  644.  If  the  action  is  for  injury  to 
the  inheritance  by  cutting  the  trees,  evidence  of  the  comparative  value  of  the  premises  with  and 
without  the  timbei-,  furnishes  an  appropriate  criterion  of  the  damage.  Van  Ueusen  v.  Y''ouug', 
29  Barb.  (N.  Y.)  9.  See  ante,  484,  note  1. 
40 


626  TRESPASS    TO    PERSON    OR   PROPERTY.  [CIT.    XXII. 

in  the  promise  of  the  defendant's  agent  to  keep  up  the  barriers) ; 
and  that,  at  all  events,  the  R.  R.  Corporation  were  not  liable 
either  for  double  damages  or  the  costs  of  the  prior  action  against 
the  town ;  and  so  the  court  held,  on  the  ground  that  the  dam- 
ages were  doubled  by  reason  of  the  neglect  of  the  town,  and 
that  the  prior  suit  was  not  defended  at  the  request  of  the  de- 
fendants (the  R.  R.  Co.),  or  for  their  benefit. 

Personal  Wrongs.  —  We  come  now  to  consider  wrongs  done 
to  the  person;  and  of  these  a  very  important  class  comprises 
injuries  to  character. 

Libel  and  Slander.  —  Special  Damage.  —  The  actions  for  libel 
and  slander  are  abundantly  treated  in  the  works  devoted  to 
those  particular  subjects.*  But  it  may  not  be  superfluous  to 
notice  some  of  the  questions  that  most  frequently  present  them- 
selves in  these  proceedings  with  regard  to  the  subject  of  relief.^ 
A  very  important  line  of  demarkation  exists  in  actions  of  slan- 
der, between  those  defamatory  words  which  are  actionable /^er  se, 
and  from  which  damage  is  presumed  to  result,  and  those  where 
to  sustain  a  suit  special  damage  must  be  averred  and  proved.^ 
As  for  instance  damage  is  presumed  if  a  clergyman  is  charged 
with  intemperance  or  profligacy,^  a  lawyer  with  dishonesty,  a 
merchant  with  bankruptcy,  or  a  physician  with  ignorance  ;  while, 
on  the  other  hand,  if  a  charge  of  want  of  chastity  is  made 
against  a  female  no  action  lies  unless  she  can  prove  special  dam- 
age.f  *     But  in  this  latter  case  slight  damages  have  been  held 

*  Sec  ante,  92,  Ingram  v.  Lawson,  6  Bing.  t  Bradt  v.  Towsley,  13  Wend.  254.  [Over- 
(N.  C.)  212,  for  what  was  said  by  the  English  ruled  on  another  point.  Note  1,  infra. — 
C.  P.  as  to  damages  in  an  action  for  libel  on  a     Ed.] 

vessel. 

1  Mental  suffering  is  an  important  element  in  the  injury  to  be  compensated  in  these  peculiar 
actions.  Swift  v.  Dickermann,  31  Conn.  285.  In  them,  as  in  other  actions  for  personal  torts, 
the  extent  of  the  remedy  is  largely  within  the  control  of  the  jury,  there  being  no  precise  rule 
by  which  the  injury  can  be  measured.  Commonwealth  v.  Sessions  of  Norfolk,  5  Mass.  437  ; 
Coffin  V.  Coffin.  4  Mass.  1  ;  Wadsworth  v.  Treat,  43  Me.  163. 

'•^  See  Caldwell  v.  Raymond,  2  Abb.  (N.  Y.)  Fr.  li.  193.  But  even  where  special  damages 
must  be  shown,  a  liberal  margin  is  allowed  the  jury.  And  in  an  action  of  this  kind  where  the 
damage,  as  far  as  proved,  consisted  in  the  loss  of  a  situation  of  £50  a  year  and  the  plaiutiff''s 
board,  a  verdict  of  £60  was  held  not  excessive.     Jackson  v.  Hopperton,  17  C-  B.  829. 

■^  And  spoken  words  imputing  to  a  man  misconduct  in  his  office  or  trade  are  actionable, 
although  the  court  could  not  take  judicial  notice  of  the  office  or  ti'ade.  So  where  a  declaration 
alleged  that  it  was  the  duty  of  the  plaintiff',  as  warrener  or  game-keeper,  not  to  kill  foxes,  and 
the  defendant  falsely  and  maliciously  said  of  the  plaintiff,  as  such  warrener  or  game-keeper,) 
that  he  killed  foxes,  it  was  held  good  without  the  allegation  of  special  damage.  Fcndger  v. 
Newcomb,  2  L.  R.  (P^xch.)  327.  But  in  slander  for  imjtuting  "  lai'ceny,"  the  fact  that  the 
plaintiff  was  a  clergyman  cannot  be  considered  by  the  jury  in  enhancement  of  the  damages 
where  there  is  no  averment  on  his  part  in  the  pleadings  to  that  effect,  and  no  claim  or  proof  of 
special  damages  on  that  ground.     Gandy  v.  Humphries,  35  Ala.  (N.  S.)  617. 

*  See  Lynch  v.  Knight,  5  L.  T.  (N.  S.)  291  (H.  of  L.)  cited  ante,  8.3,  note.  Such  special 
damage  must  be  of  a  pecuniary  nature   (Beach  v.  Ranney,  2  Hill,  309)  or  the  loss  of  some 


en.    XXII.]  LIBEL    AND    SLANDER.  C27 

sufficient,  and  the  loss  of  marriap!:e  is  enoiigli.*  Into  this  dis- 
tinction it  is  not  proper  more  lully  here  to  enter  ;  but  it  is  well 
to  remark  with  reference  to  the  subject  of  this  treatise,  that 
wdiere  the  plaintiff  undertakes  to  show  special  damage  by  the 
loss  of  customers  in  trade,  he  ought  to  state  in  his  declaration 
the  names  of  such  customers,!  and  he  cannot  prove  that  any 
persons  not  named  in  his  declaration  left  off'  dealing  with  him 
in  consequence  of  the  words  spoken. t  ^ 

In  England,  in  case  for  words  not  actionable  fer  se  and  aver- 
ring special  damage,  "  not  guilty  "  puts  in  issue  not  only  the 
speaking  of  the  words  but  also  the  special  damage  alleged.§ 

Evidence  in  Mitigation  or  Aggravation.  —  But  the  most  [540] 
important  questions  in  these  actions  relate  to  the  admis- 
sion or  exclusion  of  evidence  with  reference  to  the  mitigation 
or  aggravation  of  damages.  Originally  in  slander,  under  the 
plea  of  the  general  issue  the  defendant  might  avail  himself  of 
any  defense.  But  it  was  decided  in  England  at  an  early  day,|| 
that  if  the  defendant  intended  to  justify,  he  should  plead  his 
justification,  in  order  that  the  plaintiff  might  know  what  defense 
he  was  to  meet.  In  New  York  it  is  well  settled,  that  if  the  de- 
fendant justify  he  admits  the  malice,  and  cannot  resort  to  any 
defense  based  upon  the  absence  of  malice.  So,  mitigating  cir- 
cumstances which  have  a  tendency  to  prove  the  truth  of  the 
charge,  cannot  be  given  in  evidence  under  the  general  issue  in 

*  Moody  t'.  Baker,  5  Cow.  361  ;  Linney  v.         t  Hallock  v.  Miller,  2  Barb.  630. 
Maton,  1.3" Texas,  449.  §  Wilby  v.  Elston,  8  Man.  Gr.  &  S.  142. 

t  Hartley  v.  Herring,  8  Term,  130.  ||  Underwood  v.  Parks,  Strange,  1200. 

material  temporal  advantage.  Exclusion  from  a  private  religions  society  does  not  constitute 
it.  Roberts  v.  Roberts,  33  L.  J.  N.  S.  (Q.  B.)  249.  Nor  loss  of  the  society  of  friends  and 
neighbors,  and  illness  resulting  from  the  slander,  and  consequent  medical  expenses.  AUsop  v. 
Allsop,  2  L.  T.  (N.  S.)  Exch.  290.  And  in  general,  to  support  an  action  for  defamatory  words 
not  actionable  in  themselves,  the  special  damage  must  result  fi'om  such  an  injury  to  the  plain- 
tiff's rei)utation  as  affects  the  conduct  of,  others  toward  him.  His  mental  distress,  physical 
illness  and  inability  to  labor,  although  brought  about  by  the  slander,  are  not  such  a  natural 
and  legal  conseciuence  of  it  as  to  give  an  action.  Terwilliger  v.  Wands,  17  N.  Y.  54,  over- 
ruling Bradt  v.  Towsley,  13  Wend.  253  ;  FiUlcr  v.  Fenner,  16  Barb.  333.  The  same  principle 
applies  where  the  action  is  brought  by  a  husband  for  a  slander  on  his  wife,  who  has  become  ill 
in  consequence  of  it.     Wilson  v.  Goit,  17  N.  Y.  442. 

But  the  common-law  rule  in  the  text  as  to  the  defamation  of  a  female  is  relaxed  by  judicial 
decision  in  some  of  the  States  :  as  Massachusetts,  Miller  v.  Parish,  8  Pick.  384  ;  Connecticut, 
Frisi)ie  v.  Fowler,  2  Conn.  707  ;  Ohio,  Wilson  v.  Robbins,  Wright,  40  ;  Penn.sylvania,  Andres 
V.  Koppenheafer,  3  S.  &  R.  255;  Iowa,  Truman  v.  Taylor,  4  Iowa,  424;  Smith  v.  Silence,  4 
Iowa,  321.  In  some  others  by  statute  :  Kentucky,  Morris  i;.  Barkley,  1  Little,  64  ;  Williams 
V.  Greenwade,  3  Dana,  432  ;  Indiana,  Alcorn  v.  Hooker,  7  Blackf.  58  ;  Alabama,  Williams 
V.  Bryant,  4  Ala.  (>>.  S.)  44. 

^  In  an  action  for  slander  for  words  spoken  of  the  plaintiff  in  his  trade  or  business,  with  a 
general  allegation  of  loss  of  business,  it  is  competent  for  the  plaintiff  to  ])rove,  and  the  jury  to 
assess,  damages  for  a  general  loss  or  decrease  of  trade,  although  the  declaration  alleges  loss  of 
particular  customers  as  special  damage,  which  is  not  proved.  Evans  v.  Harries,  38  Eng.  L.  & 
E.  347.  See  also  on  the  rule  of  damages  for  defamation,  Powell  on  the  Practice  of  Evidence, 
227. 


628  TRESPASS    TO    PERSON    OR    PROPERTY,  [CH.    XXII. 

diminution  of  damages  ;  but  any  circumstances  which  disprove 
malice  but  do  not  tend  to  prove  the  truth  of  the  charge  are 
admissible  *  ^ 

So  where  it  appears  that  the  defendant  was  drunk  when  he 
uttered  the  words,  this  may  go  in  mitigation  of  damages  as  tend- 
ing to  rebut  malice.''^  But  where  it  is  proved  that  he  repeated 
the  charge  both  when  drunk  and  sober,  on  public  and  private 
occasions,  his  being  drunk  at  the  particular  time  alleged  is  no 
reason  for  abating  the  damages.!  Nor  can  the  defendant  prove 
in  mitigation  of  damages,  irritating  language  addressed  to  him 
by  the  father  of  the  plaintiff  immediately  previous  to  the  utter- 
ing of  the  slanderous  words  to  another  person.^ 

*  Gilman  v.  Lowell,  8  Wend.  573  ;  Am.  t  Underbill  v.  Taylor,  2  Barb.  S.  C.  E. 
Lead.  Cases,  190,  and  cases  tbere  collected  348. 

t  Howell  V.  Howell,  10  Iredell  (N.  C.)  84. 

1  This  rule,  that  facts  tending  to  prove  the  truth  of  the  charge  cannot  be  shown  in  mitigation 
of  damages,  is  abrogated  in  New  York  by  the  Code  of  Procedure.  Code,  §  165.  Since  that 
act,  the  defendant  may  give  in  evidence  any  circumstances  tending  to  disprove  malice,  although 
they  also  tend  to  prove  the  charge.  Bush,  v.  Prosser,  11  N.  Y.  347,  reversing  S.  C.  21  Barb. 
221,  and  Bisbey  v.  Shaw,  12  N.  Y.  67. 

A  similar  relaxation  of  the  rule  obtains  also  in  some  other  States.  See  West  v.  Walker,  2 
Swan  (Tenn.),  32  ;  Wagner  v.  Holbruner,  6  Gill  (Md.),  296  ;  Cooke  v.  O'Brien,  2  Cr.  C.  C. 
R.  17.  Thus  in  Ohio,  in  an  action  for  words  impugning  the  chastity  of  a  female,  defendant 
may  prove  under  the  general  issue  and  in  mitigation  of  damages,  that  she  and  an  unmamed 
man  had  formerly  lived  alone  together  in  the  same  house  ;  that  fact  having  been  known  to  the 
defendant  at  the  time  of  speaking  the  words.     Reynolds  v.  Tucker,  6  Ohio  St.  516. 

So  in  Iowa,  in  an  action  of  slander  for  words  imputing  unchastity,  the  defendant,  it  seems, 
may  in  mitigation  of  damages  show  that  the  plaintiff's  I'eputation  was  bad.  Hetcher  v.  Bur- 
roughs, 10  Iowa,  557.  In  Maryland,  under  the  general  issue,  evidence  of  general  reputation  is 
admissible  in  mitigation.    Shilling  v.  Carson,  27  Md.  175. 

But  in  many  States,  the  nilc  laid  down  in  the  text —  that  nothing  which  tends  to  prove  the 
trixth  of  the  charge  can  be  received  in  mitigation  —  is  still  adhered  to  :  Duncan  y.  Brown,  15 
B.  Monr.  (Ky.)  186;  Darling  v.  Banks,  14  111.  46;  Abshire  v.  Cline,  3  Ind.  115;  Smiths. 
Smith,  39  Penn.  St.  441  ;  Stees  v.  Kemble,  27  Penn.  St.  112.  And  see  Galloway  v.  Court- 
ney, 10  Rich.  (S.  C.J  L.  414  ;  Updegrove  v.  Zimmerman,  13  Penn.  St.  619  ;  Beasley  v.  Meigs, 
16  111.  139. 

2  The  allegation  of  malice  in  speaking  the  words,  is  a  material  one  in  a  declaration  for 
slander.  And  when  the  plaintiff  has />rimayaae  established  that  allegation  upon  the  trial,  the 
defendant  has  a  right,  under  the  general  issue,  to  give  in  evidence  to  mitigate  the  damages, 
matters  disproving  or  tending  to  disprove  malice,  such  as  insanity,  or  that  the  words  were 
spoken  in  a  sudden  heat  of  passion,  or  upon  a  justifiable  occasion,  or  that  there  was  a  genei'al 
belief  on  the  part  of  the  public  in  the  truth  of  the  matters  charged,  etc.,  which  evidence  the 
plaintiff  may  rebut.  Brown  v.  Brooks,  3  Ind.  518.  And  where  in  an  action  for  slander  de- 
fendant under  the  general  denial  offered  to  prove,  that  at  the  time  of  speaking  the  words  his 
mind  was  so  besotted  by  a  long  course  of  dissipation,  and  his  character  so  depraved,  that 
no  one  who  knew  him  would  pay  any  attention  to  what  he  might  utter,  or  give  any  credence 
whatever  to  any  slanderous  charge  he  might  make ;  it  was  held,  that  the  evidence  was  ad- 
missible. Mental  incompetency  intentionally  and  knowingly  to  perform  an  act,  though  pro- 
duced by  a  course  of  intemperance,  exempts  fi-om  legal  responsibility  for  such  act.  This 
rule  applies  in  cases  of  slander.  Slander  must  be  malicious.  An  idiot  or  lunatic,  no 
matter  from  what  cause  he  became  so,  cannot  be  guilty  of  malice.  Gates  v.  Meredith,  7  Ind. 
440. 

Also  in  an  action  for  a  printed  libel,  it  is  proper  to  admit  e^^dence  of  ^^lat  was  said  by  the 
defendant  in  directing  the  printing,  in  order  to  disprove  actual  malice  in  the  publication,  and 
to  influence  the  question  of  damages.  The  terms  and  conditions  on  which  the  defendant  re- 
quested the  printing  and  publication  to  be  done,  and  on  which  the  witness  agreed  to  do  it,  are 
admissible  in  evidence  as  a  part  of  the  i-es  gesta'  given  in  evidence  by  the  other  side.  Such 
evidence  is  pertinent  and  material  in  respect  to  the  motives  of  the  defendant  in  jirocuring  the 
publication  complained  of.     Taylor  v.  Church,  4  Seld.  (8  N.  Y.)  452. 


CH.    XXn.]  LIBEL    AND    SL/VNDER.  629 

RErETiTioN  OF  THE  Slandeu  uii  Libel. — Justification.  —  Inac- 
tions of  slander  and  libel,  it  has  been  much  discussed  how  far 
the  fict  of  the  slander  or  libel  complained  of  being  a  mere  repe- 
tition or  republication  can  be  set  up  either  in  justification  or  mit- 
igation.* But  the  general  scope  of  this  work  only  allows  me 
here  to  refer  to  the  subject.  It  is  well  settled  that  if  a  strict  jus- 
tification is  attempted  it  must  be  as  broad  as  the  accusation.  So, 
it  is  necessary  to  justify  the  aggravating  portion  as  well  as  the 
substantial  charge.!  And  it  has  been  even  held  that  an 
unsuccessful  plea  of  justification  was  a  good  ground  for  [541] 
increasing  the  damages.^  But  I  think  the  inclination  of 
the  latter  cases  is  against  this  idea ;  which  in  truth  leads  to  an 
effort  to  punish  what  may  be  a  perfectly  innocent  act.  So,  in 
Indiana,  in  slander  for  perjury,  if  the  defendant  plead  the  truth 
of  the  words  in  justification,  and  fail  to  prove  the  plea,  the  filing 
of  that  plea  is  not  an  aggravation ;  and  on  the  contrary,  if  from 
the  evidence  it  appear  that  the  defendant,  though  he  cannot 
strictly  justify,  had  reason  to  believe  from  the  plaintiff's  conduct 
that  the  charge  was  true,  such  fact  may  go  to  the  jury  in  miti- 
gation of  damages.^  ^ 

*  Bennett  v.  Bennett,  6  Car.  &  Pa\Tie,  589,  fact  that  the  notice  uses  the  phrase,  in  mitiga- 

and  cases  tliere  cited.  tion   of  damages,  instead  of  justification,  as 

t  Helshain  v.  Blackwood,  20  Law  J.  Ecp.  it  should.     Baker  v.  Wilkins,  3  Barb.  S.  C.  R. 

(N.  S.)   C.  P.   187;  a  notice  to  olfer  certain  220. 

facts  in  evidence  which  are  really  of  a  justiti-  |  Byrket  v.  Monohon,  7  Blackf.  83. 
catory  character,  will  not  be  vitiated   by  the 

1  The  question  whether  an  unsuccessful  plea  of  justification  should  enhance  the  damages  con- 
tinues to  be  differently  decided  in  the  various  States  of  the  Union.  In  Pennsylvania  (Gorman 
V.  Sutton,  32  Penn.  St.  247),  Indiana  (Shank  v.  Case,  1  Ind.  170  ;  Murphy  v.  Stout,  1  Ind. 
372;  Shoulty  v.  Miller,  1  Ind.  544;  Swails  r.  Butcher,  2  Ind.  84),  Georgia  (Richardson  v. 
Roberts,  23  Geo.  215),  and  Alabama  (Pool  v.  Devers,  30  Ala.  672;  Robinson  v.  Drummond, 
24  Ala.  174),  it  is  held  that  such  a  plea  is  evidence  of  actual  malice,  and  a  high  aggravation 
of  the  offense.  On  the  other  hand,  in  Illinois  (Thomas  v.  Dunaway,  30  111.  373;  Cummer- 
ford  V.  McAvoy,  15  111.  311  ;  Spencer  v.  McMasters,  16  III.  405;  Sloan  v.  Petrie,  15  111.  425), 
New  Hampshire  (Pallet  v.  Sargent,  36  N.  H.  496),  and  Ohio,  (Rayner  v.  Kinney,  14  Ohio  St. 
283),  such  a  plea,  interposed  in  good  faith,  is  no  ground  for  increasing  the  damages.  We 
think  the  last  rule  is  the  true  one,  and  that  the  plea  should  not  as  matter  of  law  carry  with 
it  any  efl^ect  of  aggravation.  The  necessity  of  such  a  consequence  may  prevent  an  honest 
defense.  As  is  said  in  the  case  last  cited,  the  motive  with  which  the  justification  is  pleaded 
should  be  "  for  the  consideration  of  the  jury.  If  they  find  that  it  was  done  with  the  inten- 
tion to  injure  the  plaintiff,  they  may  rightfully  consider  it  an  aggravation  of  the  damages  ;  but 
where  no  wrongful  intention  is  found,  there  is  no  just  ground  for  the  punishment  of  the  de- 
fendant." 

In  New  York  the  severer  rule  formerly  obtained  (Fero  v.  Ruscoe,  4  N.  Y.  162) ;  although 
before  the  Code  of  Procedure  it  had  perhaps  been  modified  by  a  limitation  of  the  increase  of 
the  damages  to  the  extent  of  the  injury  sustained  by  the  repetition.  Fulkerson  v.  George,  3 
Ab.  (N.  Y.)  Pr.  R.  75.  But  it  would  seem  to  have  been  wholly  superseded  by  that  important 
act,  which,  in  consonance  with  the  comprehensive  system  of  pleading  it  establishes,  permits  the 
defendant  in  his  answer  to  allege  both  the  truth  of  the  matter  charged  as  defamatory,  and 
any  mitigating  circumstances,  and  whether  he  prove  the  justification  or  not,  to  give  in  evidence 
the  mitigating  circumstances  N.  Y.  Code  of  Procedure,  §  165;  Bush  v.  Prosser,  1  Kern.  (11 
N.  Y.)  347.     See  ante,  540,  note. 

-  In  Indiana,  the  same  evidence  is  required  to  establish  a  plea  of  justification  of  slander  con- 
sisting in  charging  plaintiff"  with  a  criminal  offense,  as  would  be  necessary  to  convict  him 
of  the  offense  in  a  criminal  prosecution.     Swails  v.  Butcher,  2  Ind.  84 ;  Shoulty  v.  Miller,  1 


630  TRESPASS    TO    PERSON    OR   PROPERTY.  [CH.    XXH. 

So,  in  Tennessee,  an  invalid  and  insufficient  plea  of  justifica- 
tion in  an  action  of  slander  upon  which  no  judgment  could  have 
been  entered,  is  entitled  to  no  weight  in  aggravation  of  dam- 
ages under  the  plea  of  not  guilty*  No  damages  can  be  given 
in  slander  for  any  repetition  of  the  defamatory  words  subsequent 
to  the  commencement  of  the  suit.^  Such  repetition  may  be  in 
some  cases  shown  in  order  to  prove  the  character  of  the  original 
transaction  and  the  motives  of  the  defendant,  but  not  with  a 
view  to  enhancing  the  damages  by  obtaining  any  relief  for  the 
new  injury.! 

Rule  in  Louisiana.  —  It  has  been  distinctly  declared  in  Louis- 
iana, that  no  proof  of  damage  is  necessary  to  entitle  the  plaintiff 
to  recover  in  actions  of  libel,  and  that  the  pecuniary  damage  is 
never  the  sole  rule  of  assessments^ 

Slander  to  Title.  —  It  is  also  necessary  to  notice  the  action 
of  slander  to  title  of  real  estate.  We  have  already  had  occasion 
to  speak  of  an  action  for  slander  of  a  vessel.  A  false  statement 
made  maliciously  with  reference  to  the  title  to  real  estate,  is  a 

*  Braden  v.  Walker,  8  Humphreys,  34.  J  Daly  v.  Van  Benthuysen,  3  La.  Ann.  R. 

t  Pearson  v.  Lemaitre,  5  Man.  &  Gr.  700 ;     69. 
Schoonover  v.  Rowe,  7  Blackf.  202. 

Ibid.  544 ;  Landis  v.  Shanklin,  Ibid.  92.  But  eyidence  insufficient  to  establish  the  plea  may  be 
considered  in  mitigation  of  damages.  Shoulty  v.  Miller,  1  Ind.  544  ;  Landis  v.  Shanklin,  Ibid. 
92. 

Mere  rumors  and  general  reports  are  not  admissible,  even  in  mitigation.  Dame  v.  Kenney, 
5  Post.  (N.  H.)  318.  But  evidence  of  the  general  bad  reputation  of  plaintiff  at  the  time  of 
the  alleged  slander  is  admissible  in  mitigation  of  damages,  not  merely  with  a  view  to  disprove 
malice,  but  upon  the  broader  ground  that  a  person  of  already  disparaged  reputation  is  not  en- 
titled to  the  same  measure  of  damages  as  one  with  an  unblemished  fame.  The  evidence  is  ad- 
mitted to  show  the  value  of  the  thing  alleged  to  be  injured ;  and  it  is  therefore  not  to  be  re- 
stricted to  the  particular  traits  of  character  involved  in  the  slanderous  words.  Sayre  v.  Sayre, 
1  Dutch.  (N.  J.)  235.  See  also,  Leonard  v.  Allen,  11  Gush.  (Mass.)  241.  So  also  in  Arm- 
strong V.  Pierson,  8  Iowa,  29  ;  Stone  v.  Varney,  7  Met.  86;  Wolcott  v.  Hall,  6  Mass.  514. 

In  an  action  of  slander,  a  recantation  of  the  slanderous  charge  may  be  admissible  in  evidence, 
in  mitigation  of  damages  ;  but  such  retraction  must  be  in  public,  or  in  a  mode  to  qualify  the 
slander,  in  order  to  be  of  any  avail.  Kent  v.  Bonzey,  38  Me.  435  ;  Darling  v.  Banks,  14  111. 
46. 

And  the  plaintiff  cannot  prove  the  speaking  similar  words  to  those  charged,  on  other  occa- 
sions, in  aggravation  of  damages  ;  such  words  not  having  been  laid  in  the  declaration.  Vin- 
cent V-  Dixon,  5  Ind.  270. 

1  And  where  in  an  action  by  a  surgeon  for  a  slander  imputing  that  a  female  servant  had  had 
a  bastard  child  by  him,  in  consequence  of  which  one  who  had  engaged  him  as  accoucheur 
would  not  employ  him,  and  the  plaintiff  was  otherwise  injured  in  his  business,  it  was  held  that 
although  his  damages  should  not  be  confined  to  the  fee  lost  in  the  special  instance,  he  could 
not  recover  for  a  general  loss  of  business  caused  by  repetitions  of  the  slander,  but  which  could 
not  have  arisen  directly  from  the  speaking  of  the  words  by  the  defendant.  Dixon  v.  Smith,  5 
H.  &  N.  450.     And  see  Olmsted  v.  Brown,  12  Barb.  (N.  Y.)  657. 

"^  The  jury  in  estimating  the  damages  may  consider  the  defendant's  pecuniary  circumstances 
and  his  position  and  influence  in  society.  The  defendant's  wealth  is  an  element  in  his  social 
rank  and  influence,  and  therefore  tends  to  show  the  extent  of  the  injury  from  his  slanderous 
speech.  Hosley  v.  Brooks,  20  111.  115  ;  Humphries  v.  Parker,  52  Me.  502  ;  Lewis  v.  (chapman, 
19  Barb.  (N.  Y.)  252. 


CH.    XXII.]  SEDUCTION.  631 

good  cause  of  action  ;  but  the  malice  cannot  be  inferred  from 
the  falsehood  :  in  order  to  recover  substantial  damages  they 
must  be  proved  to  have  resulted  from  the  false  statement  ;  *  ^ 
and  in  this  action,  as  in  others  of  a  like  nature,  exemplary  dam- 
ages may  be  recovered.! 

We  turn  now  to  other  injuries  to  the  person.  [542] 

Seduction.  —  The  common-law  action  of  case,  by  the  father 
or  mtister,  for  seducing  a  daughter  or  female  servant,  is  one  of  a 
peculiar  character.  It  is  eminently  a  legal  fiction  :  the  demand 
is  based  upon  the  mere  loss  of  service ;  but  the  damages  are 
very  much  at  large,  and  in  the  discretion  of  the  jury.  And,  as 
a  general  rule,  exemplary  damages  may  always  be  given.t  ^  It 
is  very  curious  to  see  how  the  practice  of  giving  damages  be- 
yond the  mere  value  of  the  service,  has  grown  up.  As  late  as 
the  latter  part  of  the  last  century,  in  a  case  tried  before  Mr. 
Justice  Chambre,  the  action  being  brought  by  the  father  for  the 
seduction  of  his  natural  daughter,  the  judge  charged  the  jury 
that  they  must  consider  the  female  merely  in  the  character  of  a 
servant,  and  award  the  plaintiff  compensation  for  the  loss  of 

*  ISIalachv  v.  Soper,  3  Bin^.  (N.  C.)  371  ;     This  case  was  reversed  on  appeal,  1  Seld.  14, 
Brook  V.  Rawl,  4  Exch.  521 ;  Pitt  v.  Donovan,     but  on  another  point. 
5  M.  &  Sel.  639.  t  Ingersoll  v.  Jones,  5  Barb.  S.  C.  R.  661  ; 

t  Kendall   v.    Stone,   2    Sandf.    S.  C.  269.     Irwin  i;.  Dearmaii,  11  East,  23 ;  Edmoudson 

V.  Machell,  2  T.  R.  4. 

^  To  maintain  on  action  for  slander  of  title  to  lands,  the  words  spoken  must  not  only  be 
false,  but  they  must  be  uttered  maliciously,  and  be  followed  as  a  natural  and  legal  consequence, 
by  a  pecuniary  damage  to  the  plaintiff,  which  must  be  specially  alleged  and  proved.  And 
where  the  plaintiff,  before  the  speaking  of  the  words,  had  entered  into  a  written  contract  with 
a  third  person,  for  the  sale  to  him  of  the  lands  in  relation  to  which  the  words  were  spoken  ; 
and  the  purchaser  afterwards,  in  consequence  of  those  words,  having  become  dissatisfied  with 
the  purchase,  the  contract  was  at  his  request  canceled  by  the  plaintiff,  and  part  of  tlie  pur- 
chase-money which  had  been  paid  returned  to  him  (the  loss  of  a  sale  to  that  person  being  the 
only  special  damage  alleged)  ;  it  was  held  that  the  action  could  not  be  maintained ;  that  the 
damages  (if  any)  sustained  by  the  plaintiff,  were  the  consequence  of  his  own  voluntary  act, 
and  not  of  the  words  spoken  by  the  defendant.  Kendall  v.  Stone,  1  Seld.  (N.  Y.)  14.  The 
Supreme  Court  of  California  in  deciding  that  in  an  action  of  this  kind  the  good  faith  of  the 
defendant  is  of  no  consequence,  appears  to  have  overlooked  the  bearing  of  malice  on  the  ques- 
tion of  exemplary  damages.     Levitzky  v.  Canning,  33  Cal.  299. 

^  Ball  V.  Bruce,  21  111.  161  ;  Bartley  r.  Richtmyer,  4  Comst.  38,  44.  Nor  where  the  relation 
of  master  and  servant  exists  by  convention  only,  as  where  the  plaintiff's  daughter  is  of  age, 
will  the  recovery  be  restricted  to  compensatory  damages.  Lipe  v.  Eisenlerd,  32  N.  Y.  229 ; 
Badglcy  v.  Decker,  44  Barb.  .577.  Nor  although  the  statute  authorizes  the  daughter  to  sue  in 
her  own  name  will  they  be  thus  I'estricted  in  an  action  brought  by  the  father.  Stevenson  v. 
Belknap,  6  Iowa,  97. 

The  plaintiff  may  not  only  recover  the  damages  he  has  sustained  by  the  actual  loss  of  ser- 
xice,  and  the  payment  of  nccessarj-  expenses,  but  the  jury  may  award  him  compensation  for 
the  destruction  of  his  domestic  peace,  as  well  as  the  disgrace  cast  upon  his  family.  Kcndrick 
V.  M'Crary,  11  Ga.  603.  And,  on  the  other  hand,  proof  of  careless  indifference  on  his  part,  in 
affording  opportunities  of  criminal  intercourse  between  his  daughter  and  the  defendant,  may  be 
admitted  in  mitigation  of  damages  (Zerfing  v.  Mourer,  2  Greene  (Iowa),  .520) ;  but  not  of  a 
seeming  insensibility  on  the  part  of  the  father  to  his  daughter's  disgrace  (Bolton  i-.  INIiller,  6 
Ind.  262) ;  nor  is  it  competent  for  tlie  defendant  to  show  that  the  daughter  consented  willingly 
to  the  seduction,  nor  even  that  she  in  fact  seduced  the  defendant,  her  consent  not  depriving  the 
plaintiff  of  lus  right  of  action.     M'Aulay  v.  Birkhead,  13  Iredell's  (N.  C.)  L.  28. 


632  TRESPASS    TO    PERSON    OR   PROPERTY.  [CH.    XXH. 

service  only  *  In  the  year  1800,  Lord  Eldon,  then  chief  justice 
of  the  Common  Pleas,  in  an  action  tried  before  him,  told  the 
jury  that  they  were  to  look,  not  merely  to  the  loss  of  service, 
but  to  the  2Vowided feelings  of  the  party.f  In  1805,  Lord  Ellen- 
borough,  in  a  case  before  him,  told  the  jury  that  "  damages 
might  be  given  for  the  loss  which  the  father  sustained  by  being 
deprived  of  the  society  and  comfort  of  his  child,  and  by  the  dis- 
honor which  he  receives." t  And  finally,  the  same  learned  judge 
used  this  language  in  the  King's  Bench,  on  a  motion  to  set  aside 
an  inquisition  in  a  case  of  seduction,  on  the  ground  of  excessive 
damages.  He  said,  "  This  proceeding  was  one  sui  generis^ 
where  in  estimating  the  damages,  the  parental  feelings  and  the 
feelings  of  those  who  stood  in  loco  parentis,  had  always  been 
taken  into  consideration  ;  and  although  it  was  difficult  to  con- 
ceive on  what  legal  principles  the  damages  could  be  extended 
ultra  the  injury  arising  from  the  loss  of  service,  yet  the  practice 
was  now  inveterate,  and  could  not  be  shaken."  §^  "  The  action 
for  seduction,"  says  the  Supreme  Court  of  New  York,  "  is  pe- 
culiar, and  would  seem  to  form  an  exception  to  the  rule  that 
actual  damages  only  can  be  recovered  when  the  action  is  for 

loss  of  service  consequential  on  a  direct  injury  ;  but 
[543]  there  the  party  directly  injured  cannot  sustain  an  action, 

and  the  rule  of  damages  has  always  been  considered  as 
founded  upon  special  reasons  only  applicable  to  it."||  In  a  case 
brought  by  the  mother,  in  1837,  Tindal,  Chief  Justice  of  the 
English  Common  Pleas,  directed  the  jury  that  they  might  give 
damages  for  the  distress  and  anxiety  of  the  plaintiff.^ ^  As  to  the 
right  of  recovery,  however,  the  English  cases  adhere  to  the 
original  idea  on  which  the  action  is  founded.  So,  if  there  is  no 
proof  of  loss  of  service  whatever,  there  can  be  no  relief**  So, 
although  the  defendant  be  guilty  of  the  seduction,  but  the  jury 
are  of  opinion  that  the  child  is  not  his,  the  plaintiff  cannot 
recover.!!  In  other  words,  without  some  damage  to  the  plaintiff 
or  master,  occasioned  by  the  illness  of  the  female,  and  resulting 
from  the  illicit  intercourse,  the  plaintiff  is  without  relief 

In  this  country,  however,  there  seems  to  be  an  inclination  to 
push  the  redress  further.     Thus,  in  North  Carolina,  it  has  been 

*  Selwyn's  Nisi  Prius,  5th  ed.  1075.  ||  Whitney  v.  Hitchcock,  4  Den.  461. 

t  See  note  to  Andrews  v.  Askey,  8  Car.  &  1"  Andrews  v.  Askey,  8  Car.  &  P.  7. 

P.  7  ;  Eng.  C.  L.  R,  270.  **  Grinnell  v.  Wells,  7  Man.  &  Gr.  1033. 

X  See  same  note.  tt  Eager  i;.  Grimwood,  1  Exch.  61. 
§  Irwin  V.  Dearman,  1 1  East,  23. 

1  See  Powell  on  the  Practice  of  Evidence,  228. 

'■^  The  injury  to  plaintiff's  feelings  need  not  be  laid  in  the  declaration  as  special  damages. 
Phillips  V.  Hoyle,  4  Gray  (Mass.),  568. 


CH.    XXII.]  SEDUCTION.  033 

held  that  an  action  on  a  case  for  seduction  might  be  maintained 
before  the  deUvery,  and  it  was  said  that  the  law  would  be  the 
same  had  there  been  no  pregnancy  *  So,  the  English  rule  re- 
quiring proof  of  actual  service  has  been  relaxed  ;  it  is  only 
necessary  to  show  that  the  parent  has  the  legal  right  to  com- 
mand the  services  of  the  child,!  ^  and  very  slight  evidence  of 
loss  of  service  will  suffice. J  But  the  action  cannot  be  main- 
tained by  one  standing  merely  in  hco  parentis  without  proof  of 
actual  service.^'^  It  is  also  proper  to  bear  in  mind  in  relation 
to  this  action,  that  criminal  connection  may  take  place  without 
seduction,  and  that  if  seduction  be  not  proved,  damages  for  it 
should  not  be  given.||  ^ 

The  Damages  are  govehned  by  Legal  Rules  as  far  as  Com- 
PENSATioN  IS  intended.  —  Where  the  jury  were  directed  or  sup- 
posed they  were  directed,  that  damages  might  be  given  for 
bringing  up  the  child,  the  fruit  of  the  illicit  connection, 
the  Supreme  Court  of  New  York  granted  a  new  trial,  on  [544] 
the  ground  that  the  plaintiff,  the  master,  was  under  "  no 
legal  obligation  to  support  and  educate  the  child  ;  that  he  could 
not  be  compelled  to  appropriate  the  proceeds  of  the  verdict  to 
that  purpose ;  and  that  the  verdict  would  not  afford  the  defend- 
ant any  exemption  from  his  liability  to  provide  for  the  child 
when  called  on  in  the  regular  course  of  the  law."^    This,  in  ef- 

*  Brifigs  V.  Evans,  5  Iredell,  16.  See  also,  cases,  the  case  of  Sargent  v. ,  5  Cow- 
Hewitt  i\  Prime.  21  Wend.  79.  106,  has  been  denied  to  be  law  so  far  .as  it  ad- 

t  Bartley  v.  Riehtmaycr,  4  Comstock,  38,  mitted  the  right  of  the  plaintiff  to  recover- 
where  the  cases  arc  collected.  See  also,  in  Indiana,  Boyd  v.  Byrd,  8  Black- 

X  Villepigne  r.  Shalcr,  3  Strobhart,  462.  ford,  113. 

§  Roberts  v.  Connelly,  14  Ala.  235;  South  ||  Hill  v.  Wilson,  8  Blackford,  123. 
V.  Denniston,  2  Watts,  474.     In  both  of  these 

1  Wliite  V.  Nellis,  31  N.  Y.  405 ;  Ingerson  v.  Miller,  47  Barb.  (N.  Y.)  47  ;  Mnlvehall  v.  Jlill- 
ward,  1  Kern.  (N.  Y.)  343.  But  so  hard  and  so  technical  is  the  absurd  theory  on  which  this 
action  still  rests,  that  where  the  female  seduced  was  the  apprentice  of  the  defendant  and  hound 
to  live  with  him  until  she  was  eighteen,  and  the  seduction  occurred  while  she  was  thus  in  fact 
and  in  law  the  defendant's  servant,  and  the  plaintiff,  her  father,  had  no  legal  right  to  her  ser- 
vices, it  was  held,  that  there  being  no  pretense  that  the  defendant  procured  the  daughter  to 
enter  his  service  with  a  ^new  to  her  seduction,  the  action  could  not  be  maintained.  Dain  v. 
Wycoff,  3  Seld.  (N.  Y.)  191.  Otherwise,  where  in  such  case  the  father  had  the  right  to  reclaim 
the  daughter's  services  from  the  defendant.  Bolton  v.  Miller,  6  Ind.  262.  See  also  JNIanley  v. 
Field,  7  C.  B.  (N.  S.)  96;  Thompson  v.  Ross,  5  H.  &  N.  16;  Davics  v.  Williams,  10  Q.  B. 
725 ;  Blaymire  v.  Haley,  6  M.  &  W.  55 ;  Dean  v.  Peal,  5  East,  45.  So  an  action  cannot  be 
maintained  by  a  mother  where  the  daughter  was,  at  the  time  of  the  seduction,  over  twenty-one, 
and  residing  with  her  brother,  nor  by  the  personal  representatives  of  a  deceased  father  or 
master.     George  v.  Van  Horn,  9  Barb.  (N.  Y.)  523. 

2  But  the  action  may  be  maintained  wherever  the  female  seduced  is  de  facto  a  servant  of  the 
plaintiff,  although  there  is  neither  contract  of  service  nor  tie  of  blood  between  them.  Irwin  v. 
Deannan,  11  East,  23;  Bennett  v.  Allcott,  2  T.  R.  166;  Harper  v.  Luff  kin,  7  Baru.&  C.  387  ; 
Man  veil  v.  Thomson,  2  Car.  &  P.  303 ;  Moran  v.  Dawes,  4  Cow.  412.  So  where  the  action  is 
for  an  assault.     Edmondson  v.  Machell,  2  Tenn,  4. 

^  In  case  for  seduction,  evidence  of  the  intercourse  of  the  plaintiff's  daughter  with    other 
men  may  be  given  in  evidence  under  a  plea  of  not  guilty.     Verry  v.  Watkins,  7  C.  &  P.  308. 
■*  To  "a  like  effect  is  Haynes  v.  Sinclair,  23  Vt.  108. 


634  TRESPASS    TO    PERSON   OR   PROPERTY.  [CH.    XXII. 

feet,  deelares  that  the  damages  are  to  be  measured  by  strict 
legal  rules,  or  at  least  asserts  the  principle  I  have  above  stated, 
that  even  in  cases  of  aggravation,  where  it  appears  that  the  jury 
did  not  intend  to  give  vindictive,  but  only  compensatory  dam- 
ages, and  on  that  point  were  wrongly  instructed,  such  course 
will  be  taken  as  to  restrict  the  compensation  within  legal  lim- 
its.* 

So,  also,  it  is  well  settled  that  in  this  action  no  evidence  can 
be  given  as  to  any  promise  of  marriage,  either  with  reference  to 
the  right  of  action  or  measure  of  damages ;  the  remedy  for  the 
breach  of  that  contract  belonging  to  the  female  in  her  own 
name.  Thus,  in  the  King's  Bench,  Lord  Ellenborough  said,  "The 
daughter  may  be  asked  whether  the  defendant  paid  his  addresses 
in  an  honorable  way ;  further  than  that  you  can  on  no  account 
go."t 

So  in  New  York,  in  such  a  case,  it  has  been  held  incorrect  to 
admit  this  description  of  evidence,  whether  the  judge  instructs 
the  jury  that  they  may  give  damages  for  the  seduction,  and  also 
for  the  breach  of  the  promise,  or  whether  he  admits  it  only  to 
prove  the  seduction,  but  not  to  enhance  the  damages.^  Nor 
can  an  offer  to  marry  the  female  be  given  in  evidence  to  miti- 
gate the  damages.§ 

Criminal  Conversation.-^  —  In  actions  for  criminal  conversa- 
tion, it  has  been  held  that  the  amount  of  reparation  is  in  no 
sense  to  be  measured  by  the  defendant's  property  ;  and  evidence 
that  the  defendant  is  a  man  of  large  fortune  is  therefore  inad- 
missible.^    But  this  is  not  so  in  actions  for  breach  of  promise  of 

*  Sargent  v. ,  5  Cow.  106.     See  also,  Fitch,  2  Wend.  464 ;  Gillett  v.  Mead,  7  Wend. 

Edmondson  v.  Machell,  2  T.  R.  4.  193.     See  also,  Brownell  v.  M'Ewan,  5  Denio, 

t  Dodd  V.  Norris,  3  Camp.  519.     See  also,  367,  and  Wells  v.  Padgett,  8  Barb.  S.  C.  R. 

Tullidge  V.  Wade,  3  Wils.  18.  323. 

t  Foster  v.  Scoffield,  1  J.  R.  297  ;  Clark  v.        §  Ingersoll  v.  Jones,  5  Barb.  S.  C.  R.  661. 

1  Contrary  to  the  general  tenor  of  the  decisions  elsewhere,  punitory  damages  in  this  class  of 
actions  are  not  allowed  in  Ireland.     Wilson  v.  Leonard,  .5  Ir.  Jur.  0.  S.  (Exch.)  96,  101. 

'■^  In  the  assessment  of  damages  against  a  co-respondent  in  this  action,  the  measure  of  dam- 
ages is  the  value  of  the  wife  of  whom  the  husband  has  been  deprived.  If  the  co-respondent's 
fortune  was  used  by  him  as  a  means  of  the  seduction,  it  is  said  in  England  that  it  may  be  taken 
into  account,  but  not  otherwise.  Cowing  v.  Cowing  and  Wollen,  38  L.  J.  (N.  S.  Probate), 
149.'  See  as  to  the  theory  of  this  action,  post,  547,  and  note.  But  in  slander,  as  we  have  seen 
(supi-a,  541,  note),  evidence  of  defendant's  wealth  may  be  given  to  aid  in  determining  the 
amount  of  damages,  and  such  seems  to  be  the  case  in  actions  for  malicious  torts  generally. 
Richards  v.  Booth,  4  Wis.  67  ;  Rowc  v.  Moses,  9  Rich.  (S.  C.)  L.  423  ;  Bell  v.  Morrison,  27 
Miss.  68  ;  although  "  the  evidence  should  be  confined  to  general  reputation  as  to  the  circum- 
stances of  the  defendant."  Kniffen  v.  M'Connell,  30  N.  Y.  285.  So  in  an  action  on  the  case 
for  the  seduction  of  plaintiff's  daughter,  it  is  competent  for  the  plaintiff  to  give  in  evidence,  on 
the  question  of  damages,  the  pecuniary  circumstances  of  the  defendant.  M'Aulayu.  Birkhead, 
13  Iredell's  (N.  C.)  L.  28.  But  in  Alabama  such  evidence  has  been  held  inadmissible.  Ware 
V.  Cartledge,  24  Ala.  622.  And  see  Dain  v.  Wycoff,  3  Seld.  (N.  Y.)  191  (opinion  of  Gardi- 
ner, J.).  E  converso,  in  an  action  for  assault  and  battery,  the  plaintiff,  to  inci-ease  the  damages, 
was  allowed  to  show  he  was  a  laboring  man  and  had  a  wife  and  children  to  support.  Gaither 
V.  Blowers,  11  Md.  536. 


CII.    XXII.]  ENTICING    SERVANTS.  635 

marriage,  where  the  amount  of  the  defendant's  property  is  ma- 
terial, as  going  to  show  what  should  have  been  the  station 
of  the  plaintiff  in  society  if  the  promise  had  not  been   [545] 
broken* 

Enttcing  Servants.  —  In  the  action  for  enticing  a  servant 
from  his  employment,  the  same  effort  to  limit  the  relief  to  com- 
pensatory damages  has  been  exhibited.  In  an  early  case  it  was 
said  that  the  general  rule  of  damages  is  the  value  of  the  ser- 
vant's time  daring  the  period  he  was  in  the  defendant's  employ- 
ment ;  but  that  in  cases  of  aggravation,  the  jury  may  give  the 
'vvhole  value  of  the  servant.!  This,  however,  refers  rather  to 
slaves  than  servants.  In  a  case  of  this  kind  in  Illinois,  for  entic- 
ing a  registered  servant,  it  was  held  that  the  plaintiff  was  en- 
titled to  recover  the  value  of  the  services  lost  up  to  the  time  of 
the  commencement  of  the  suit,  the  reasonable  expenses  neces- 
sarily incurred  in  getting  the  servant  back  again,  and  damages 
for  the  loss  of  time,  trouble,  and  injury  sustained  until  the  com- 
mencement of  the  suit ;  and  that  if  the  plaintiff  lost  the  entire 
service  in  consequence  of  the  defendant's  act,  then  he  was  en- 
titled to  the  value  of  the  term  of  serviced 

In  an  action  on  the  case  for  enticing  the  plaintiff's  servants, 
who  were  not  hired  by  the  plaintiff  for  a  limited  or  constant 
period,  but  worked  by  the  piece,  by  inviting  them  to  dinner,  and 
inducing  them  to  sign  an  agreement  not  to  work  for  him  ;  it 
being  proved  that  the  plaintiff,  a  piano-forte  maker,  realized 
about  £800  per  annum  by  the  sale  of  his  instruments,  the  jury 
found  a  verdict  for  £1,600.  The  plaintiff  was  nearly,  if  not  ab- 
solutely ruined.  On  a  motion  for  a  new  trial,  it  was  insisted 
that,  as  the  men  worked  by  the  piece,  each  of  them  was  justi- 
fied in  leaving  the  plaintiff  when  he  had  completed  the  work  in 
hand  ;  and  that  in  point  of  fact,  the  plaintiff  could  only  be  en- 
titled to  recover  damages  for  the  half-day  for  which  his  work- 
men accepted  the  defendant's  invitation.  The  court  refused  to 
interfere  on  the  ground  that  the  damages  were  excessive  ;  and 
Richardson,  J.,  said,  "  The  measure  of  damages  he  is  entitled  to 
receive  from  the  defendant  is  not  necessarily  to  be  confined  to 
the  servants  he  might  have  in  his  employ  at  the  time  they  were 
so  enticed,  or  for  that  part  of  the  day  on  which  they  absented 
themselves  from  his  service,  but  he  is  entitled  to  recover 
damages  for  the  loss  he  sustained  by  their  leaving  him  at  [546] 
that  critical  period."  § 

*  James  v.  Biddington,  6  C.  &  P.  589.  |  Hays  v.  Borders,  1  Oilman,  46. 

t  Dubois  V.  Allen,  Anthon's  N.  P.  128.  §  Guuter  v.  Astor,  4  Moore,  12. 


636  trespass  to  person  or  property.  [ch.  xxii. 

Trespass  for  Illegal  Seizure.  —  Consequential  Damages.  — 
So,  again,  in  trespass  for  taking  the  plaintiff's  goods  in  execution 
under  a  warrant  of  attorney  and  judgment,  which  were  after- 
wards set  aside  as  illegal,  it  has  been  recently  held  in  the  Eng- 
lish Queen's  Bench  that  the  plaintiff  cannot  claim  as  part  of  the 
damag-e,  his  costs  incurred  in  vacatinc]^  the  warrant  of  attorney 
and  judgment ;  Lord  Denman  saying,  "  The  plaintiff  might  have 
recovered  these  costs  in  a  proper  form  of  proceeding;  but  he 
cannot  sue  the  defendant  for  a  trespass  per  quod  he  w^as  put  to 
expense  in  removing  the  cause  of  the  trespass. 


»*i 


Parent's  Action  for  Injury  to  Child.  —  There  is  a  class 
of  cases  nearly  connected  with  these,  in  which  I  do  not  find  that 
any  rule  has  been  declared  distinctly  ;  it  is  where  the  parent 
sues  for  personal  injury  to  the  child,  without  actual  malice 
or  other  aggravating  circumstances;  as,  for  instance,  an  action 
against  a  railroad  or  steamboat,  for  collision  or  explosion.  Here 
it  may,  perhaps,  be  said,  on  one  hand,  that  injury  to  the  person 
resulting  from  negligence  is  a  good  ground  to  infer  malice  ;  but, 
on  the  other,  the  action  is  based  on  the  loss  of  service  alone, 
and  the  question  is,  what  has  the  plaintiff  lost  in  the  services  of 
the  servant.  And  the  analogy  of  the  action  for  seduction  does 
not  appear  to  hold  good  ;  because  there  is  no  pretense  of  inten- 
tion to  injure,  and  no  interest  of  public  morals  to  vindicate.  The 
question  is  embarrassing,  and  I  cannot  but  believe  that  the  em- 
barrassment results  from  placing  the  claim  on  a  false  basis,  i.  e. 
the  loss  of  service.^ 

Mitigation.  —  We  have  had  occasion,  in  regard  to  actions  on 
contract,  to  discuss  the  subject  of  recoupment  and  set-off.  The 
doctrine  of  mitigation,  to  which  we  have  already  incidentally 
referred,  is  of  an  analogous  character  in  regard  to  actions  of 
tort.^    The  general  rule  is  that  anything  which  is  a  complete  an- 

*  Holloway  v.  Turner,  6  Q.  B.  R.  928. 

^  The  owner  of  cattle  which  arc  wrongfully  turned  out  of  an  inclosure,  cannot,  if  he  knows 
of  the  consequent  necessity  of  taking  care  of  them,  recover  from  the  trespasser  danaages  for 
their  subsequent  death  by  starvation.     Story  v.  Robinson,  32  Cal.  205. 

■-^  In  such  an  action  the  rule  of  damages  is  now  well  established  to  be  compensation  for  the 
loss  of  the  minor's  future  services,  and  the  expenses  sustained  by  the  injury,  such  as  those  for 
surgical  and  medical  attendance.  Oakland  R.  Co.  v.  Fielding,  48  Penn.  320  ;  Gilligan  v.  The 
New  York  and  Harlem  R.  Co.  I  E.  D.  S.  (N.  Y.)  453.  The  prospective  loss  must  be  declared 
for  specially.     Ibid. 

»  See  Street  v.  Blay,  2  B.  &  Ad.  456 ;  ante,  448 ;  Verry  v.  Watkins,  7  C.  &  P.  308  ;  ante, 
543;  and  see  ante,  chap.  17.  The  extent  of  damages  to  which  the  attaching  officer  who  sues 
the  real  owner  of  the  attached  property  for  trespass  for  unlawfully  removing  it  from  the  attach- 
ment is  entitled,  is  the  amount  due  on  the  execution  which  the  property  was  held  to  i>ay.  Hous- 
ton V.  Howard,  39  Vt.  54. 

In  an  action  to  recover  damages  for  killing  a  dog,  proof  of  the  animal's  worthlessness  is  ad- 


en.    :XX1I.]  PERSONAL    WRONGS.  637 

swer  to  the  action  must  be  pleaded  either  m  bar  or  in  justifica- 
tion ;  but  it  is  also  well  settled  in  many  cases  that  matters  which 
go  to  the  quantum  of  damages  merely,  to  palliate  the  character 
of  the  offense,  or  to  miiigate  the  amount  which  the  jury  may 
award,  may  be  given  in  evidence  under  the  general  issue.^ 

As  TO  Personal  AVrongs.  —  One  of  the  simplest  forms  of 
mitigatory  evidence  comes  under  the  head  of  provocation. 
"  In  actions  for  personal  wrongs  and  injuries,"  says  Lord  [547] 
Abinger,*  at  Nisi  Prius,  "  a  defendant  who  does  not  deny 
that  the  verdict  must  pass  against  him,  may  give  evidence  to 
show  that  the  plaintiff  in  some  degree  brought  the  thing  upon 
himself" 

So  in  an  action  for  libel,  the  defendant  may  give  in  evidence 
other  libels  recently  published  before,  by  the  plaintiff  of  the  de- 
fendant.!^ So  in  an  action  for  assault  and  battery,  a  libel  pub- 
lished by  the  plaintiff  on  the  defendant,  may  be  given  in  evi- 
dence in  mitigation  of  damages,  even  though  it  be  at  the  time 
the  subject  of  a  cross-action ;  but  that  being  so,  the  defendant 
ought  not  to  derive  much  advantage  from  it  in  mitigating  the 
damages.^  ^ 


So  in  an  action  of  criminal  conversation^  which  is  founded  on 

4 
5 


the  loss  of  the  comfort,  fellowship,  and  assistance  of  the  wife^ 


*  Frazer  v.  Berkeley,  7  Car.  &  Payne,  621.         %  Fraser  v.  Berkeley,  7  Car.  &  Payne,  621. 
t  Watts  V.  Fraser,  7  Ca^.  &  Payne,  369. 

missible  in  mitigation,  though  that  defense  was  not  j^leaded.  Duulap  v.  Snyder,  17  Barb.  (N. 
Y.)  561. 

^  The  distinction  as  to  the  effect  of  mitigating  circumstances  on  actual  and  on  exemplary 
damages  is,  that  where  the  excusing  or  the  palliating  circumstances  involve  no  fault  of  the 
plaintiff,  they  may  prevent  exemplary  damages  and  limit  the  recovery  to  the  actual  damages. 
And  this  is  an  expression  of  the  principle  that  the  faults  of  third  persons  shall  not  benetit  or 
prejudice  either  of  the  parties  in  their  right  and  duty  of  compensation.  If,  making  due  allow- 
ance for  rlie  infirmities  of  human  temper,  the  defendant  has  a  reasonable  excuse  for  the  viola- 
tion of  the  public  order,  then  there  is  no  foundation  for  exemplary  damages,  and  the  plaintiff 
can  claim  only  compensation.  It  is  merely  the  corollary  of  this,  that  where  there  is  a  reason- 
able excuse  for  the  defendant,  arising  from  the  provocation  or  fault  of  the  plaintiff,  but  not 
sufficient  entirely  to  justify  the  act  done,  there  can  be  no  exemplary  damages,  and  the  circum- 
stances of  mitigation  must  be  applied  to  the  actual  damages.  If  it  were  not  so,  the  plaintiff 
would  get  full  compensation  for  damages  occasioned  by  himself.  The  rule  ought  to  be,  and  is 
practically  mutual.  Malice  .and  provocation  in  the  defendant  are  punished  by  inflicting  dam- 
ages exceeding  the  measure  of  compensation,  and  in  the  plaintiff  by  giving  him  less  than  that 
measure.     Robinson  v.  Rupert,  23  Penn.  St.  .524.     Evans  v.  Matson  56  Penn.  54. 

'■^  In  an  action  of  slander  or  libel,  it  is  competent  for  the  defendant  to  show,  in  mitigation  of 
damages,  the  manner  of  language  held  towards  him  by  the  plaintiff,  prior  to  the  time  of  the 
libel  for  wliicli  he  is  sued.  Botelar  v.  Bell,  1  Md.  173.  And  he  may  prove  in  mitigation  of 
damages,  a  declaration  of  the  plaintiff  that  he  was  not  injured  by  the  words  complained  of. 
But  evidence  that  the  witnesses  who  heard  the  words  uttered  did  not  believe  them,  is  not  ad- 
missible. Richardson  v.  Barker,  7  Ind.  567.  See  also  on  this  subject,  Turner  v.  Foxall,  2  Cr. 
C.  C  R.  324. 

"*  But  SKO  post,  next  page,  and  note  (2). 

*  So  fiir  is  this  theory  of  the  action  carried  that  in  a  case  at  Nisi  Prius,  where  the  husband 
was  unaware  of  his  wife's  dishonor  till  she  made  the  disclosure  to  him  on  her  dying  bed,  and 
he  continued  to  treat  her  with  great  kindness  till  her  death,  which  occurred  in  the  same  month, 


638  TRESPASS    TO    PERSON    OR   PROPERTY.  [CH.    XXII. 

it  is  competent  to  show,  in  mitigation  of  damages,  that  the  plain- 
tiff's wife  was  an  actress ;  that  he  concealed  his  marriage  from 
his  wife's  mother,  and  very  seldom  saw  his  wife,  but  suffered  his 
wife  to  remain  living  with  her  mother  as  if  she  were  a  single 
woman,  and  allowed  her  to  continue  her  theatrical  performances 
in  her  maiden  name.*^ 

It  has  been  held  in  Pennsylvania,  that  in  trespass  against  a 
constable  for  arresting  and  imprisoning  the  plaintiff  on  suspicion 
of  a  felony,  the  bad  character  of  the  plaintiff  cannot  be  given  in 
evidence  in  mitigation  of  damages.! 

In  an  action  of  assault  and  battery,^  the  defendant  cannot 
give  in  evidence  the  general  bad  character  of  the  plaintiff;  but 
he  may  show  the  conduct,  and  even  character  of  the  plaintiff, 
when  they  form  the  provocation  and  inducement  to  the  particu- 
lar trespass.^:  The  defendant  cannot  give  in  evidence,  in  miti- 
gation of  damages,  the  acts  or  declarations  of  the  plaintiff  at  a 
different  time,  or  any  antecedent  facts  which  are  not  fairly  to  be 
considered  as  part  of  one  and  the  same  transaction,  though  they 
may  have  been  ever  so  irritating  or  provoking.§  ^ 

The  provocation,  to  entitle  it  to  be  given  in  evidence  in  miti- 
gation of  damages,  must  be  so  recent  and  immediate  as  to  in- 
duce a  presumption  that  the  violence  done  was  committed  under 

*  Calcraft  v.  Earl  of  Harborough,  4  Car.  &  f  Rhodes  v.  Bunch,  3  M'Cord,  66  ;  M'Ken- 
Payne,  499.  zie  v.  Allen,  3  Strobhart,  546. 

t  Russell  V.  Shuster,  8  Watts  &  Serg.  308.  §  Lee  v.  Woolsey,  19  J.  R.  319. 

Mr.  Justice  Coleridge,  while  instructing  the  jnry  against  the  allowance  of  vindictive  damages, 
told  them  to  give  damages  for  the  shock  to  the  husband's  feelings  and  the  loss  of  his  icife's  society 
down  to  the  time  of  her  death.     Wilton  v.  Webster,  7  C.  &  P.  198. 

1  Proof  of  the  ill  treatment  of  the  wife  by  the  husband  before  the  criminal  intercourse,  may 
be  received  in  mitigation.  Palmer  v.  Crook,  7  Gray  (Mass.),  418.  As  to  the  evidence  admis- 
sible in  mitigation  in  an  action  for  enticing  away  the  jjlaintiff 's  wife,  see  Bennett  v.  Smith,  21 
Barb.  439. 

2  The  rules  for  measuring  damages  in  assault  and  battery,  as  far  as  any  rules  obtain,  are 
the  same  in  substance  with  those  elsewhere  considered  in  I'espect  of  aggressive  torts  in  general 
(ante,  chap.  \9>,  post  5.52,  note);  although  from  their  nature  they  are  especially  subject  to  the 
application  of  the  principle  of  punitive  damages.  In  an  action  for  an  aggravated  assault  and 
battery  whereby  the  plaintiif  lost  his  leg,  the  elements  of  damages  were  said  to  be, —  1.  Loss 
of  time  and  labor  from  the  date  of  the  assault  until  plaintiff's  restoration  to  health.     2.  Ex- 

Senses  of  medical  and  surgical  attendance  during  illness.  3.  Diminished  capacity  to  work  at 
is  trade,  consequent  on  the  loss  of  his  leg.  4.  His  bodily  pain  and  suffering.  Donnell  v. 
Sanford,  11  La.  Ann.  645.  As  to  what  damages  will  be  allowed  in  admiralty  for  the  excessive 
punishment  of  a  seaman  by  a  master,  see  Whitney  v.  Eager,  Crabbe's  C.  C.  R.  442. 

In  trespass  for  assault  and  battery,  evidence  of  the  pecuniary  condition  of  the  plaintiff  may 
be  given.  Cochran  v.  Ammon,  16  111.  316.  And  the  jury  may  consider  the  plaintiff's  loss  of 
peace  of  mind  and  happiness.     Cox  v.  Vanderkleed,  21  Ind.  164. 

^  Gaithcr  v.  Blowers,  II  Md.  536.  Mere  words  do  not  amount  to  an  assault;  and  no  words 
will  justify  an  assault  and  battery,  though  they  may  be  proved  in  mitigation  of  damages. 
Keyes  v.  Devlin,  3  E.  D.  Smith's  (N  Y.)  C.  P.  R.  518.  But  words  uttered  by  the  plaintiff 
against  the  defendant  on  a  former  occasion,  and  repeated  to  the  defendant,  arc  not  admissible 
in  mitigation.  Jarvis  v.  Manlove,  5  Harring.  (Del.)  452.  In  an  action  for  an  assault  and 
battery,  whei'e  the  altercation  grew  out  of  a  question  of  veracity  between  the  parties,  the  de- 
fendant was  allowed  to  show  that  the  truth  of  the  matter  in  dispute  was  with  him,  in  mitigation 
of  damages.     Marker  v.  Miller,  9  Md.  338. 


CII.    XXI 1.]  MITIGATION.  639 

the  immediate  influence  of  the  feehngs  and  passions  excited  by 
it.i 

An  admission  by  the  counsel  for  the  plaintiff  at  the  trial  of 
an  action  of  trespass,  that  the  defendant  acted  without  malice, 
precludes  the  plaintiff  from  claiming  vindictive  damages  ;  and 
therefore  evidence  on  the  part  of  the  defendant,  in  the  nature 
of  a  justification,  is  inadmissible  by  way  of  mitigation  *  It  is 
proper  here  to  notice  the  rule,  that  one  of  several  joint  tres- 
passers who  is  compelled  to  pay  damages  cannot  compel  his  co- 
trespassers  to  contribute.! 

As  TO  Trespass  to  Property.  —  As  to  mitigation  in  trespass, 
it  has  been  held  in  the  State  of  Pennsylvania,  that  in  an  action 
for  pulling  down  a  building,  evidence  that  the  building  was 
peaceably  taken  down,  and  its  materials  preserved,  in  conformity 
with  the  directions  of  the  commissioners  of  the  township,  dur- 
ing a  period  of  great  public  excitement  and  disorder,  with  a 
view  of  saving  the  neighborhood  from  threatened  violence,  is 
admissible  in  mitigation  of  damages.  But  in  such  action,  evi- 
dence that  the  commissioners  had  by  law  the  power  to  abate 
and  remove  nuisances,  and  that  a  grand  jury,  after  instructions 
by  a  competent  court,  presented  the  building  as  a  public  nui- 

*  Hoyt  V.  Gelsten,  13  J.   R.  141  ;  S.  C.  in         t  Acheson  v.  Miller,  18  Ohio,  1. 
Error,  Ibid.  561. 

1  Ireland  v.  Elliott,  5  Iowa,  478  ;  Johnson  v.  Crawford,  Phillips'  L.  R.  (N.  C.)  342.  See  Willis 
V.  Forrest,  2  Dner  (N.  Y.),  310  (atfirmcd  in  the  Court  of  Appeals),  where  it  is  held  on  a  review  of 
the  eases,  that  in  an  action  of  assault  and  battery,  causes  of  provocation  cannot  be  admitted  in 
evidence  in  mitigation  of  damages  unless  they  happened  at  the  time  of  the  assault,  or  imme- 
diately preceding  it,  so  as  to  form  part  of  one  transaction.  To  a  like  etfect  is  Collins  v.  Todd, 
17  Mo.  537.  See  also.  Corning  v.  Corning,  2  Seld.  (N.  Y.)  97.  And  it  would  seem  that  no 
provocation  will  reduce  the  damages  in  an  action  for  assault  and  battery  below  comj)ensatory 
or  actual  damages,  unless  it  amounts  to  a  justification.  Birchard  v.  Booth,  4  Wis.  67.  The 
plaintiff's  bad  character  and  association  with  persons  of  ill  repute  does  not  palliate  the  assault, 
and  cannot  mitigate  the  damages.  Bruce  y.  Priest,  5  Allen -(Mass.),  100.  Nor  can  a  person 
guilty  of  willful  assault  and  battery  show,  that  from  the  intemperate  habits  of  the  other  party, 
the  injury  was  more  aggravated  than  it  would  have  been  upoffa  person  of  temperate  habits. 
Littlehalc  v.  Dix,  11  Cush.  (Mass.)  364. 

Nor  can  the  defendant  in  a  eivil  action  for  an  assault  and  battery  be  permitted  to  prove  in 
mitigation  of  damages,  that  he  had  been  indicted,  convicted,  and  lined  for  the  same  offense. 
An  indictment  is  intended  as  a  vindication  of  public  justice  ;  an  action  is  brought  for  compen- 
sation for  private  injury.  The  object  of  the  two  proceedings  is  entirely  distinct,  and  the  one 
should  not  interfere  with  the  course  of  the  other.  Wheatley  v.  Thorn,  23  Miss.  62  ;  Wolff  v. 
Cohen,  8  Rich.  (N.  C.)  144.  (See  on  this  subject,  however,  as  regards  exemplary  damages, 
ante,  535,  note.)  In  an  action  by  a  husband  and  wife  for  an  assault  and  battery  on  the  wife, 
previous  misconduct  of  the  husband  cannot  be  received  in  mitigation.  Jacobs  v.  Hoover,  9 
Minn.  204.  Nor  it  seems,  where  the  misconduct  consisted  in  fraudulently  obtaining  possession 
of  premises,  and  the  assault  and  battery  were  perpetrated  in  forcibly  turning  out  the  fraudu- 
lent occupant,  could  such  fraud  be  shown  in  mitigation  of  any  real  damages  sustained  by  him. 
It  could  be  received  in  mitigation  of  exemplary  damages  only,  and  then  only  where  the  fraud 
or  its  discovery  was  very  I'ecent  and  the  defendant  acted  under  the  conse(iuent  excitement  of 
the  moment.  Ibid.  The  wife's  loss  of  time  is  no  part  of  the  injury  for  which  com])ensation 
can  be  given.  Her  time  and  service  belong  to  the  husband,  and  for  a  loss  of  them  he  must  sue 
alone.     Barnes  v.  Martin,  15  Wis.  240. 


640  TRESPASS  TO  PERSON  OR  PROPERTY.       [CH.  XXH. 

sance  and  recommended  its  abatement,  is  not  admissible  in  miti* 
gation  of  damages.*  ^ 

Return  of  Property  Wrongfully  Taken.  —  The  general  rule 
in  regard  to  personal  property  is  that  its  return  is  no  bar 
[548]  to  an  action,  but  is  admissible  in  mitigation  of  dam- 
ages.! ^  And  such  we  have  already  seen  to  be  the  law 
in  regard  to  the  action  of  trover.$^  For  the  same  reason  as  in 
that  action,  therefore,  if  the  property  has  been  returned  without 
injury  to  the  plaintijQf  before  action  brought,  he  can  only  recover 
nominal  damages ;  and  if  special  damage  intermediate  the  tres- 
pass and  the  return  is  demanded,  it  would  seem  that  it  should 
be  specially  alleged.§  So  in  Massachusetts,  where  the  plaintiff, 
before  suit,  demanded  the  goods,  and  the  defendant  promised  to 
return  them,  but  they  were  attached  on  a  writ  against  the 
plaintiff  while  the  defendant  was  preparing  to  return  them,  the 
measure  of  damages  has  been  held  to  be  the  same  that  it  would 
have  been  if  the  defendant  had  returned  the  goods. ||  So,  on 
the  same  principle,  it  has  been  held  in  the  same  State,  that  the 
defendant  may  prove  in  mitigation,  that  the  goods  did  not  be- 
long to  the  plaintiff,  and  that  they  have  gone  to  the  use  of  the 
true  owner.^^ 

I  think  that  the  principle  of  these  decisions  has  been  carried 
quite  far  enough.  It  is  of  importance  to  draw  the  line  between 
good  and  bad  faith ;  where  the  party  acts  with  pure  motives, 
and  endeavors  as  soon  as  possible  to  repair  his  mistake,  it  may 
be  very  proper  to  construe  his  conduct  favorably  ;  but  it  will 
not  do  to  permit  acts  of  willful  or  wanton  trespass  to  be  excused 

*  Reed  v.  Bias,  8  Watts  &  Ser».  189.  §  Moon  v.  Raphael,  2  Bing.  (N.  C.)  310. 
t  Bac.  Abr.   628;  Vosborgh  v.  Welch,   11         ||  Kaley  j;.  Shed,  10  Met.  317. 

J.  R.   175;    Gibbs  o.  Chase,   10  Mass.  125;         H  Squire  i^.  Holleubcck,  9  Pick.  551;  City 
Hanmer  u.  Wilsey,  17  Wend.  91.  of  Lowell  v.  Parker,  10  Met.  309. 

t  Ante,  492,  and  cases  there  cited. 

1  In  Illinois,  in  trespass,  evidence  tending  to  repel  the  presumption  of  malice  is  admissible  in 
mitigation  of  exemplary  damages.  Gray  v.  Waterman,  40  111.  522;  Reeder  v.  Purdy,  41 
Ibid.  279.  So  also  in  trespass  vi  et  armis.  Roth  v.  Smith,  41  Ibid.  314.  And  false  imprison- 
ment.    Donelly  v.  Harris,  41  Ibid.  126. 

2  Hibbard  v.  Stewart,  1  Hilt.  207.     See  Pratt  v.  Battels,  28  Vt.  685,  688. 

3  The  rules  of  mitigation  in  trespass  and  trover  generally  arc  and  always  should  be  the 
same  where  either  action  is  brought  for  the  same  offense.  See  ante,  492,  note  1 .  And  the 
fact  that  property  taken  by  a  trespasser  has  been  appropriated  to  the  owner's  use  by  his  con- 
sent, expressed  or  implied,  goes  in  mitigation  ;  and  it  is  said  in  Illinois  that  such  consent  is 
always  implied  where  the  property  has  been  legally  seized  and  sold  under  process  in  favor  of  a 
stranger,  or  of  the  trespasser  against  the  owner.     Bates  v.  Courtwright,  36  111.  518. 

*  Criner  v.  Pike,  2  Head  (Tenn.),  398.  So  in  the  case  of  an  executor  de  son,tort,  who  is 
liable  for  the  value  of  goods  appropriated  by  him  (see  Baysand  v.  Lovering,  1  Cr.  C.  C.  R. 
206),  it  was  long  ago  held  by  Lord  Holt,  that  although  "he  cannot  plead  payment  of  debts, 
etc.,  to  the  value,  etc.,  or  that  he  hath  given  the  goods,  etc.,  in  satisfaction  of  the  debts  .... 
nevertheless,  upon  the  general  issue  pleaded,  such  jjayments  shall  be  recouped  in  damages." 
Whitehall  v.  Squire,  Carthew,  103. 


CH.    XXII.]  MITIGATION.  04 1 

by  the  defense  of  outstanding  titles  in  third  persons.  It  would 
lead  directly  to  that  reckless  interference  with  the  property  of 
others  which  the  law  always  sedulously  seeks  to  prevent.  This 
distinction  is  well  laid  down  in  a  case  in  New  York,  where  it 
was  held  that  where  property  tortiously  taken  by  one  person 
from  the  possession  of  another,  is  subsequently  levied  upon, 
whilst  in  the  hands  of  the  tort  feasor,  by  a  third  person,  under 
a  warrant  of  distress  for  rent  due  by  the  owner,  such  last  taking 
may  be  shown  in  mitigation  of  damages  in  an  action  by  the 
owner  against  the  tort  feasor,  if  the  latter  took  the  property 
wider  an  honest  belief  that  he  had  a  title  to  it,  and  not  for  the  [549] 
purpose  of  subjecting  it  to  the  landlord's  warrant* ^ 

Payiment  of  Plaintiff's  Debts  by  Trespasser.  —  And  so  in 
Pennsylvania,  it  has  been  held  that  a  sheriff  who  has  wrongfully 
levied  on  and  sold  the  goods  of  the  plaintiff,  will  not  be  per- 
mitted to  give  in  evidence,  in  mitigation  of  damages,  that  he  has 
voluntarily  applied  part  of  the  proceeds  of  the  sale  to  the  pay- 
ment of  a  debt  of  the  plaintiff,  the  court  saying,  "  It  is  the  naked 
case  of  a  voluntary  payment  out  of  the  proceeds  of  a  debtor's 
property  wrongfully  converted,  but  not  at  the  debtor's  special 
instance  and  request.  Every  one  has  a  right  to  adjust  his  own 
liabilities,  and  no  one  has  a  right  to  make  another  his  debtor  by 
interference  with  his  affairs."!^ 

Plaintiff's  Acts  of  Ownership.  —  Where  the  goods  taken  are 
inclosed  in  boxes,  the  mere  opening  of  the  boxes  subsequently 
by  the  owner,  to  enable  a  witness  to  appraise  the  value  of  the 
goods,  is  not  such  a  resumption  of  the  property  as  will  justify  a 
mitigation  of  damages.^ 

Illegal  and  Noxious  Property.  —  The  character  of  the  prop- 

*  Higgins  V.  Whitnev,  24  Wend.  379  ;  Otis  t  McMichael  v.  Mason,  13  Penn.  State  R. 
V.  Jones,  21  Wend.  394'  114,  and  Dallam  v.  Eitler,  6  W.  &  S.  323. 

X  Connah  v.  Hale,  23  Wend.  462. 

1  See  Sherry  v.  Schuyler,  2  Hilt.  204.  And  see  ante,  536,  note ;  Toms  v.  Wilson,  32  L.  J. 
(N.  S.)  Q.  B.382. 

2  So  in  the  same  State  where  property  wrongfully  seized  is  sold  pending  the  suit  for  the 
trespass,  and  bought  in  by  the  owner  at  less  than  its  real  value,  his  right  to  recover  the  full 
value  from  the  trespasser  is  unaffected  by  the  purchase.  Eby  v.  Schumacher,  29  Penn.  St. 
40.  And,  as  we  have  seen  in  trover,  where  the  plaintiff  has  regained  the  property,  he  is  en- 
titled to  the  damages  sustained  by  his  temporary  deprivation  of  it  and  the  expense  of  getting 
it  back.  Sec  M'Inroy  v.  Dyer,  47  Penn.  St.  118  ;  ante,  492,  note.  But  where  a  sale  of  goods 
was  made  by  a  debtor  in  violation  of  the  State  insolvent  laws,  and  the  goods  while  in  the 
purchaser's  hands  were  attached  by  a  creditor  who  held  them  till  the  institution  of  proceedings 
in  insolvency  and  the  choice  of  an  assignee,  and  then  delivered  them  to  the  assignee,  these 
facts  were  allowed  in  mitigation  in  an  action  of  tort  brought  by  the  j)urchaser  against  the 
attaching  creditor.    Leggett  v.  Baker,  13  Allen,  470. 

41 


642  TRESPASS  TO  PERSON  OR  PROPERTY.       [CH.  XXII. 

erty  may  be  such  that  the  law  will  not  give  it  any  protection  at 
all,  or  at  best  a  partial  one.  In  an  action  of  trespass  for  cutting 
and  destroying  a  picture,  it  appeared  that  it  was  a  valuable 
painting,  but  it  also  appeared  that  it  was  a  gross  libel  on  the 
defendant's  sister ;  and  Lord  Ellenborough  told  the  jury  that 
they  must  only  award  the  value  of  the  canvas  and  paint  which 
formed  its  component  parts.* 

So,  where  trespass  was  brought  against  officers  of  the  cus- 
toms for  taking  a  portfolio  and  drawings,  it  has  been  held  by  the 
King's  Bench,  that  the  defendant  may  justify  by  showing  that 
the  portfolio  contained  drawings  liable  to  seizure  for  non-pay- 
ment of  duty,  which  the  plaintiff  was  in  the  act  of  carrying 
ashore  out  of  a  foreign  packet.  The  jury  found  one  farthing 
damages.  On  this  the  plaintiffs  were  nonsuited,  and  the  court 
refused  liberty  to  enter  a  verdict  for  the  amount  found.f 

Malicious  Prosecution.  —  "We  have  already  partially  discussed 
the  action  for  malicious  prosecution.^  ^  Where  partners  sue  for 
torts  committed  on  them  as  a  firm,  as  in  cases  of  libel  or 
[550]  malicious  prosecution,  it  is  well  settled  that  no  damages 
can  be  given  for  any  injury  to  the  private  feelings  of  the 
plaintiffs.  The  act  complained  of  must  affect  the  joint  business 
or  trade  of  the  copartnership.§ 

And  it  has  been  held  in  New  York  that  the  jury  in  this  ac- 
tion cannot,  upon  the  question  of  malice  and  in  determining  the 
amount  of  damages,  take  into  consideration  facts  which  estab- 
lish against  ^ome  of  the  defendants  a  case  of  false  imprisonment, 
as  such  facts  constitute  a  distinct  cause  of  action,  for  which 
those  defendants  may  be  rendered  liable  in  another  suit.|| 


Wrongful   Attachment.  —  In  Alabama,  it  has  been  decided 

*  Du  Bost  r.  Beresford,  2  Camp.  511.     See  See  an  elaborate  and  able  exposition  of  this 

also,  Davis  v.  Nest,  6  Car.  &  P.  167.  subject  by  the  Supreme  Court  of  Alabama,  in 

t  De  Gondouin  v.  Lewis,  10  Adol.  &  Ellis,  Doiinell  v.  Jones,   13  Ala.  (N.  S.)  490,  509. 

117.  Sec  this  last  case  again,  17  Ala.  688. 

t  Ante,  96.  H  Carpenter  v.  Sheldon,  5  Sand.  S.  C.  R. 

§  Haythorn  v.  Lawson,  3   Car.  &  P.  196.  77. 

1  It  is  well  settled  that  in  this  action,  evidence  of  the  plaintiff's  bad  character  is  admissible 
in  mitigation  of  damages.  Fitzgibbon  v.  Brown,  44  Me.  169.  Where  the  plaintiff  has 
incurred  the  moi'al  guilt  of  the  crime  of  which  the  defendant  sought  to  have  him  convicted, 
and  escaped  conviction  on  technical  grounds,  if  he  is  entitled  to  recover  anything  in  this 
action,  it  can  be  nothing  more  than  the  actual  damages  sustained  by  his  arrest.  Sears  v. 
Hathaway,  12  Cal.  277.  In  an  action  against  several  defendants  for  malicious  prosecution, 
the  jury  cannot,  upon  the  question  of  malice,  and  in  determining  the  .amount  of  damages, 
take  into  consideration  facts  establishing  against  some  of  the  defendants  a  case  of  false  im- 
prisonment. That  constitutes  a  distinct  cause  of  action  for  which  those  defendants  may  be 
rendered  liable  in  another  suit.  Carpenter  v.  Sheldon,  5  Sandf  (N.  Y.)  77.  See  also,  on  tho 
evidence  admissible  in  this  action,  Bacon  v.  Towne,  4  Cash.  (Mass.)  217. 


CH.   XXII.]  WRONGFUL   ATTACHMENT.  643 

that  in  an  action  for  wrongfully  and  vexatiously  suing  out  an 
attaehnient  auxiliary  to  the  main  suit,  to  enable  the  plaintiif  to 
obtain  a  lien  on  property  for  the  satisfaction  of  whatever  judg- 
ment he  might  recover,  the  costs  incurred  in  defending  the  orig- 
inal suit  constitute  no  part  of  the  plaintiff's  damages  ;*  but  the 
counsel  fees  in  the  suit  may  be  proven  and  considered  by  the 
jury.t  And  in  this  action,  evidence  of  the  plaintiff's  profits, 
alleged  to  be  lost  by  injury  to  his  credit,  has  been  admitted,  not 
as  a  measure  of  damages,  but  as  an  ingredient  in  the  cause,  or 
to  guide  the  discretion  of  the  jury.t 

In  the  same  State,  on  the  issuing  of  an  attachment,  the  plain- 
tiff gives  bond  to  pay  the  defendnnt  "  such  damages  as  he  may 
sustain  by  the  wrongful  or  vexatious  suing  out  of  the  attach- 
ment." ^  On  these  bonds  it  has  been  held  that  if  the  attachment 
be  wrongfully  sued  out,  the  actual  damage  only  can  be  recovered ; 
but  if  both  wrongfully  and  maliciously,  then  the  party  may  have 
vindictive  damages.§  ^ 

*  White  V.  Wyley,  17  Ala.  167.  %  Donnell  v.  Jones,  17  Ala.  689. 

t  Marshall  v.  Betner,  17  Ala.  833.  §  Sharpe  v.  Hunter,  16  Ala.  765. 

1  The  measure  of  damages  for  a  wrongful  attachment  is  chiefly  discussed  in  actions  on  the 
bonds  required  by  law  as  a  condition  of  the  attachment,  and  is  considered  in  that  relation, 
ante,  397,  note  2. 

2  Aside  from  the  question  of  malice,  the  cardinal  rule  of  indemnity  is  maintained  in  these 
actions.  Thus,  where  wheat  wrongfully  attached  advanced  considerably  in  value  pending  the 
proceeding,  but  at  the  time  of  its  redelivery  to  the  defendant  in  the  attachment,  had  declined 
to  about  the  price  it  bore  when  the  process  was  levied,  it  was  held  that  he  could  not  recover 
the  difference  l)etween  its  highest  market  value  pending  the  attachment,  and  its  value  at  the 
time  of  the  redelivery,  without  proof  that  he  could  or  would  have  sold  it  at  the  advanced  rate. 
Meshke  v.  Van  Doren,  16  Wis.  319.  Where,  however,  bonds  and  notes  belonging  to  a  bank 
were  wrongfully  attached,  and  declined  in  value  pending  the  attachment,  the  defendant  was 
held  liable  for  the  actual  loss  resulting  from  the  sale  at  a  price  lower  than  would  have  been 
realized  but  for  the  attachment.  Horn  u.  Bayard,  11  La.  (Rob.)  An.  259.  See  onfe,  397, 
note  2. 

So  the  rules  as  to  nominal  damages  {ante,  ch.  ii.)  apply  here.  Where,  in  Louisiana,  an  attach- 
ment against  a  vessel  was  released  on  the  execution  of  a  mortgage  on  her  by  her  master, 
which  mortgage  was  void  by  the  laws  of  the  State,  and  pending  the  suit  in  which  the  attach- 
ment was  issued,  the  vessel  passed  into  the  hands  of  bona  fide  purchasers,  but  was  not 
registered  in  the  custom-house,  and  there  was  no  other  record  evidence  of  the  change  of  own- 
ership, and  after  final  judgment  decreeing  her  to  be  liable,  she  was  again  seized  by  her 
attaching  creditors,  but  released  in  four  days  without  being  delayed  in  the  prosecution  of  her 
next  voyage,  it  was  held  in  an  action  by  the  owners  for  the  wrongful  seizure  that  they  were 
entitled  to  nominal  damages  only.  The  court  said  that  they  had  no  cause  to  com])lain  that 
they  were  called  to  make  proof  of  ownership  in  a  thing  apparently  bound  for  the  claim  of  the 
seizing  creditor.  Hunter  v.  Bennet,  15  La.  An.  715.  See  also  Groat  v.  Gillespie,  25  Wend. 
383.     See  ante,  334,  note. 

The  general  conclusion  as  to  the  damage  to  an  owner  of  property  fi'om  its  detention  or  from 
his  deprivation  of  its  use  by  a  wrongful  ajjplication  of  a  remedial  process,  is  as  follows.  The 
in(piiry  should  be  limited  to  the  actual  value  of  the  use,  as  for  example  the  rent  of  real  estate, 
the  hire  of  chattels,  or  the  value  of  the  use  of  any  other  species  of  property  in  itself  unpro- 
ductive. Where  the  property  is  not  productive,  the  injury  from  the  deprivation  of  the  use 
should  be  restricted  to  interest  on  its  value.  Beyond  this,  the  damages  would  be  conjectural, 
indefinite,  and  uncertain,  and  the  plaintiff  cannot  recover  them.  If,  however,  the  property  is 
damaged,  or  if  when  returned  it  is  of  less  value  than  when  seized  in  consequence  of  a  depre- 
ciation in  price,  or  from  any  other  cause,  for  such  difference  the  plaintiff  is  entitled  to  recover. 
It  is  said  that  the  rule  as  to  the  fall  in  ])rice  would  not  be  applicable  to  every  sjjecies  of  prop- 
erty. But  it  would  clearly  apply  to  the  case  of  goods  kept  for  sale,  not  for  mere  use.  See 
Reidhar  v.  Bcrger,  8  B.  Monr.  160.  Under  a  claim  for  the  loss  of  the  use  of  property,  a 
verdict  for  its  value  cannot  be  sustained.     Cox.  v.  Robinson,  2  Rob.  (La.)  313. 


644  TRESPASS    TO    PERSON    OR   PROPERTY.  [CH.    XXH. 

Unauthorized  Suits. — Akin  to  malicious  prosecutions,  though 
not  identical  with  them,  are  unauthorized  suits  brought  in  the 
name  of  a  party  without  his  direction  or  consent.  The  action 
is  in  this  case  a  groundless  proceeding,  irrespective  of  any 
merits  it  might  have  had  if  legitimately  brought.  The  person 
so  acting  without  authority,  is  liable  to  make  good  the  damage 
sustained  ;^  and  it  has  been  said  that  though  the  person  in 
whose  name  it  is  brought  would  have  had  a  right  to  maintain 
it,  this  circumstance  will  afford  no  reason  for  reducing  the  dam- 
ages."**" 

Death  of  Human  Being.  —  We  turn  now  to  other  trespasses. 
It  appears  that  at  common  law,  and  independently  of  statutory 
provision,  the  death  of  a  human  being  is  not  the  ground  of  an 
action  for  damages.  In  a  case  where  a  plaintiff  brought  an 
[551]  action  against  the  proprietors  of  a  stage-coach  for  negli- 
gent driving,  by  which  his  wife  was  killed.  Lord  Ellenbor- 
ough  said  that,  "  in  a  civil  court,  the  death  of  a  human  being 
cannot  be  complained  of  as  an  injury."  f  And  so  it  has  been  held 
in  Massachusetts,  in  a  case  where  a  widow  sued  a  railroad  com- 
pany for  negligence,  by  which  her  husband  had  been  killed.! 

In  New  York,  in  an  action  on  the  case§  for  negligently  run- 
ning over  and  killing  the  plaintiff's  son,  a  lad  of  ten  years  of 
age,  the  judge  charged  that  the  plaintiff  was  entitled  to  recover 
such  sum  by  way  of  damages  as  they  should  be  of  opinion  the 
services  of  the  child  would  have  been  worth  until  he  became 
twenty-one  years  of  age.  The  case  was  carried  up,  but  no 
question  seems  to  have  been  distinctly  made  as  to  the  correct- 
ness of  this  direction.^     And  in  a  subsequent  case  in  the  same 

*  Foster  v.  Dow,  29  Maine,  442.  t  Carey  and  wife  v.  Berkshire  E.  R.  Co.  1 

t  Baker  v.  Bolton,  1  Camp.  493.  Gushing,  475. 

§  Ford  V.  Monroe,  20  Wend.  210. 

^  The  gist  of  the  action  is  not  malice,  but  the  want  of  authority.  But  evidence  of  express 
malice  on  the  part  of  the  defendant  towards  the  plaintiff,  although  not  necessary,  is  still  com- 
petent. If  the  plaintiff  in  such  action  disclaims  any  special  damages  for  injury  to  his  charac- 
ter, the  defendant  cannot  attack  it,  either  to  rebut  the  evidence  of  malice  or  in  mitigation  of 
damages.     Smith  v.  Hyndman,  10  Cush.  (Mass.)  554. 

2  See  also  Drew  v.  The  Sixth  Avenue  11.  Co.  26  N.  Y.  49.  It  has  been  recently  decided  in 
Michigan,  after  a  full  discussion  of  the  authorities,  that  a  husband  may  maintain  an  action  for 
the  loss  of  services  caused  by  the  death  of  his  wife ;  but  that  only  actual  damages  can  be 
given,  at  least  unless  malice,  or  gross  negligence  is  shown.  Hyatt  v.  Adams,  16  Mich.  180. 
Such  at  least  is  the  rule  laid  down  in  one  part  of  the  opinion,  but  other  statements  of  the 
learned  court  do  not  reconcile  themselves  easily  with  the  above.  In  the  first  place,  the  court 
say,  "  It  is  not  too  much  to  say  that  the  tendency  of  the  evidence  on  the  part  of  the  plaintiff 
below,  was  to  show  such  a  total  want  of  skill,  and  such  a  degree  of  carelessness,  as  would  in 
law  make  the  defendant  below  guilty  of  manslaughter,"  This  would  seem  to  be  therefore  one 
of  those  cases  of  gross  negligence  which  would  entitle  the  plaintiff  to  exemplary  damages. 
But  again  the  court  say  that  a  charge  ought  to  have  been  given  to  the  effect  that  if  no  evd 
motive  was  shown  only  actual  damages  could  be  allowed,  leaving  gross  negligence  out  of  view 
here  altogether.     It  is  to  be  hoped  that  the  court  may  have  another  opportunity  to  define  the 


CH.    XXII.]  DAMAGES    FOR   TAKING    LIFE.  G45 

State,  where  the  plaintilT's  infant  child  died  within  an  hour  and 
a  half  after  the  injury,  Bronson,  J.,  delivering  the  opinion  of 
the  Court  of  Appeals,  said,  "  I  have  a  strong  impression  that 
the  father  could  recover  nothing  on  account  of  the  injury  to 
the  child  beyond  the  pli3^sician's  bill  and  funeral  expenses ; " 
but  the  point  was  not  decided.* 

Statutes.  —  The  remissness  of  the  common  law  in  this  re- 
spect has  been  cured  by  various  statutes.  In  England,  the  9 
and  10  Vict.  c.  93,  provides  that  whenever  the  death  of  a 
person  shall  be  caused  by  a  wrongful  act,  and  which  would,  if 
death  had  not  ensued,  have  entitled  the  party  injured  to  main- 
tain an  action,  the  party  offending  shall  be  liable  notwithstand- 
ing the  death.  So,  in  Massachusetts,!  if  the  life  of  any  pas- 
senger is  lost  by  the  negligence,  etc.,  of  the  proprietors  of  a 
railroad,  etc.,  or  of  their  servants,  the  proprietors  shall  be  lia- 
ble to  a  fine  not  exceeding  five  thousand  dollars  nor  less  than 
five  hundred  dollars,  to  be  recovered  by  indictment  for  the  ben- 
efit of  the  widow  and  heirs. ^. 

And  in  New  York  a  statute  t^  provides,  that  whenever  the 
death  of  any  person  shall  be  caused  by  any  wrongful  act  or 
neglect,  the  party  who  would  have  been  liable  if  death  had  not 
ensued,  shall  be  liable  to  an  action  for  damages,  notwithstand- 
ing the  death  of  the  party  injured,  and  although  the 
act  be  felonious.  This  statute  is  taken  from  the  Enghsli  [552] 
statute  §  above  cited,  commonly  known  as  Lord  Camp- 
bell's act ;  and  the  second  section  provides  that  the  action  is  to 
be  brought  by  the  personal  representatives  of  the  deceased,  and 
that  "in  every  such  action  the  jury  may  give  such  damages 
as  they  deem  a  fair  and  just  compensation  not  exceeding  five 
thousand  dollars,  with  reference  to  the  injuries  resulting  from 
such  death,  to  the   person."  ^     I  suppose  that  under  this  act 

*  Pack  V.  Mayor  of  N.  Y.  3  Comstock,  489.        J  Passed   13th  Dec.  1847.    Laws    of  1847, 
t  Stat,  of  1840,  c.  80.  c.  450. 

§  9  and  10  Vict.  c.  93. 

exact  limits  of  the  rule  relating  to  exemplary  damages  in  such  cases  as  the  above ;  the  im- 
portance of  a  rule  to  govern  them  is  undeniable.  We  can  see  no  reason  why  exemplary 
damages  should  not  be  given  in  an  action  for  loss  of  a  wife's  sen-ices,  as  the)'  are  in  acrions 
for  loss  of  a  child's.  Magee  v.  Holland,  3  Dutch.  86.  If  exemplary  damages  were  recover- 
able in  the  statutory  action  for  death,  that  would  be  a  reason  for  refusing  the  allowance  of 
them  elsewhere  ;  but  such  is  not  the  case ;  and  if  not  allowed  in  such  actions  as  that  of  Hyatt 
r.  Adams,  we  reach  the  conclusion  that  though  in  all  other  cases  of  tort,  however  trivial, 
circumstances  of  aggravation  go  to  the  jury,  yet  only  pecuniary  damage  can  be  considered  in 
the  gravest  of  them  all  —  trespass  causing  death. 

1  See  as  to  other  kindred  legislation  in  Massachusetts,  post,  552,  notes,  and  ante,  466,  note. 

2  Amended  Laws  1849,  ch.  256. 

^  Money  received  by  a  widow  on  a  policy  of  life  insvarance  on  the  deceased,  is  not  to  betaken 
into  account  by  the  jixry  in  assessing  such  damages  under  the  New  York  statute.    Althorf  v. 


646  TRESPASS  TO  PERSON  OR  PROPERTY.       [CH.  XXII. 

the  jury  are  not  intended  to  give  vindictive  or  exemplary  dam- 
ages *  ^ 

In  England  it  has  l^een  held,  that  the  rule  of  the  common 
law  is  applicable  to  this  statute ;  that  the  action  is  to  be  treated 
as  if  the  injured  party  had  brought  it  f  and  that  if  his  negli- 

*  See  Smith,  Adm'r,  v.  London  &  N.  W.  E.  Co.  1  Code  Reporter,  32. 

Wolfe,  22  N.  Y.  355.  But  in  Enf^land,  at  Nisi  Prius,  Lord  Caiiipbell  lately  held  otherwise, 
and  instructed  the  jury  to  deduct  from  the  amount  of  the  pecuniary  loss  sustained  by  the  fam- 
ily the  insurance  they  would  be  entitled  to  receive  on  a  policy  on  the  life  of  the  deceased  against 
accidents  by  railway.  Hicks  v.  The  Newport,  Abergavenny,  and  Hereford  R.  R.  Co  4  B.  &  S. 
403,  note.  On  principle  it  should  seem  that  the  New  York  rule  is  the  proper  one.  See  the 
analogous  rule  in  case  of  loss  by  collision,  ante,  469,  note. 

1  Under  the  Massachusetts  statute,  as  we  haA'e  seen,  exemplary  damages  are  expressly  dis- 
allowed by  the  terms  of  the  act  (Mass.  Gen.  Stat.  1866,  p.  651;  ante).  And  they  are  gen- 
erally not  recoverable  (Penn.  R.  Co.  v.  Henderson,  51  Pcnn.  St.  315),  although  in  Connecticut, 
where  the  provision  is  that  "  actions  for  injuries  to  the  person,  whether  the  same  do  or  do  not 
result  in  death,  shall  survive  to  the  executor  or  administrator,"  without  the  qualifying  clause 
which  exists  in  Massachusetts,  exemplary  damages  are  permitted.  Murphy,  Adm'r,  v.  The 
New  York  and  N.  H.  R.  R.  Co.  29  Conn.  496. 

'■'  Under  the  English  statute  there  must  be  some  evidence  of  actual  or  prospective  pecuniary 
loss.  Where  such  is  given,  though  indistinct  as  to  amount,  the  jury  have  the  right  to  deter- 
mine the  amount.     Duckworth,  Adm'r,  v.  Johnson,  4  H.  &  N.  653. 

So  also  under  the  same  act,  the  action  was  held  maintainable,  though  all  the  decedent's 
income  survived  him  as  a  whole,  his  estate  of  =£4,000  a  year  passing  to  his  eldest  son,  sub- 
ject to  a  jointure  of  £1,000  a  year  to  his  wife,  and  £800  a  year  to  the  eight  younger  chil- 
dren. The  jury  were  to  look  separately  to  the  interests  of  the  respective  members  of  the 
family,  and  if  the  death  occasioned  to  any  one  of  them  the  loss  of  the  reasonable  expectation 
of  future  pecuniary  benefit,  they  were  bound  to  consider  such  loss  and  give  damages  accord- 
ingly. Pvm,  Adm'x,  v.  The  Great  Northern  R.  Co.  32  L.  J.  (N.  S.)  377  (Exchequer  Cham- 
ber), affirming  S.  C.  in  Q.  B.  31  L.  J.  (N.  S.)  249.  Also,  4  B.  &  S.  396,  affirming  2  B.  &  S. 
759. 

The  damages  are  not  to  be  estimated  by  the  value  of  the  decedent's  life,  according  to  the 
annuity  tables,  but  the  jury  are  to  give  what  they  think  a  reasonable  compensation.  Arms- 
worth  V.  South  Eastern  Railw.  11  Jur.  758.  They  should  be  calculated  with  reference  to  a 
reasonable  expectation  of  pecuniary  benefit  as  of  right  or  othencise  from  the  continuance  of  the 
life.  In  an  action  by  a  father  for  injury  resulting  from  the  death  of  his  son,  it  appeared  that 
the  father  was  old  and  infirm,  and  that  the  son,  who  was  young  and  earning  good  wages,  as- 
sisted his  father  in  some  work,  for  which  the  father  was  paid  3s.  6f/.  a  week.  "The  jury  having 
found  that  the  father  had  a  reasonable  expectation  of  pecuniary  benefit  from  the  continuance 
of  his  son's  life,  the  court  held  that  the  action  was  maintainable.  Franklin,  Adm'r,  v.  The 
South  Eastern  R.  Co.  3  H.  &  N.  21 1 .  Specific  proof  of  the  wages  paid  at  the  time  of  the  death 
is  not  necessarv  to  entitle  the  plaintiff  to  substantial  damages.  Bait.  &  Ohio  R.  R.  Co.  v. 
State,  use  of  Kelly,  24  Md.  271. 

The  mental  sufferings  of  the  survivors  cannot  be  considered.  Blake  v.  The  Midland  R.  Co. 
18  Q.  B.  93. 

The  ftmeral  and  mourning  expenses  of  a  child  are  not  allowed  the  parent.  Ibid.  ;  Boulter 
V.  Webster,  13  Weekly  R.  289.  Statutes  similar  to  the  English  act  have  now  been  passed  in 
many  of  the  States:  Pennsylvania,  act  April  26,  1855  (Laws  1855,  p.  309);  Iowa,  R.  S. 
1860,  p.  705,  §  4111  (2500)  ;'Missouri,  Gen.  Stat.  1865,  eh.  147,  p.  601  ;  Illinois,  act  Feb.  12, 
1853,  1  111.  Stat.  ed.  1858,  p.  422  ;  California,  1  Gen.  Laws  Cal.  (1865),  2325;  Kansas,  Gen. 
Laws  (1862),  p.  80  ;  Ohio,  2  R.  S.  Ohio  (1860),  p.  1139  ;  Connecticut,  Gen.  Stat.  tit.  1,  §§  97, 
98  ;  Rhode  Island,  R.  S.  1857,  ch.  176,  sec.  21  ;  Michigan,  2  Comp.  Laws,  1857,  ch.  151  ;  Wis- 
consin, R.  S.  1858,  ch.  135,  §  12.     Maryland,  Code,  art.  65,  §§  1,  2. 

These  statutes,  it  is  held  in  New  York,  do  not  apply  where  the  injury  is  committed  in  a  for- 
eign State.  Whitford  y.  Panama  R.  R.  Co.  23  N.  Y.  465  ;  Mahler,  Adm'x,  v.  Norwich  and 
New  York  Transportation  Co.  45  Barb.  226.  To  recover,  the  plaintiff  must  show  that  the  de- 
ceased came  to  his  death  without  fault  on  his  part.  Curran  v.  Warren  Chemical  and  Manf 'g 
Co.  36  N.  Y.  153. 

In  most  of  the  American  acts,  as  in  their  English  model,  compensation  for  the  pecuniary 
loss  only  is  contemplated,  and  where  such  is  the  case,  nothing  is  to  be  allowed  for  the  suffering 
of  the  decedent,  or  the  grief  of  his  surviving  relatives.  Braunberger  v.  Cleis  (Pcnn.),  4  Am. 
Law  Reg.  (N.  S.)  587  ;  Pennsylvania  R.  Co.  r.  Zebc,  33  Penn.  318;  Pennsylvania  R.  Co.  v. 
Kelly,  31  Pcnn.  372  ;  Oakland  "Railway  Co.  v.  Fielding,  48  Penn.  320;  Pennsylvania  R.  Co. 
V.  Vandever,  36  Penn.  298;  North  Penn.  R.  Co.  v.  Robinson,  44  Penn.  175  ;  Ohio  and  Missis- 


CH.    XXII.]  DAMAGES    FOR    TAKING    LIFE.       .  647 

gence  contributed  to  the  disaster,  the  pLaintiff  cannot  recover.* 

*  Tucker  v.  Chaplin,  2  Car.  &  Kir.  730. 

sip])!  R.  Co.  V.  Tiiidal,  13  Iiul.  300  ;  Mclntyrc  v.  The  New  York  Cent.  R.  Co.  47  Barb.  (N. 
Y.)  .'jl.")  ;  Donaldson  v.  The  Mississij)pi  and  Mis.souri  R.  Co.  18  Iowa,  280;  City  of  Chicago  v. 
Major,  18  111.  349;  Telfer  v.  Northern  R.  C^o.  1  Vroom  (N.  J.),  188;  State  of  Maryland  to 
the  use  of  Mary  Conuhlaii  v.  Raltimore  and  Ohio  R.  Co.  5  Am.  Law  Reg.  (N.  S.)  3'J7  ;  Quin 
V.  Moore,  l.')  N.  Y.  432  ;  Lelnnan  v.  Brooklyn,  29  Barb.  234.  If  the  injiirie.s  are  ])eeuniary, 
they  may  be  eom])ensated  from  whatever  source  they  proceed.  The  jury  arc  held  to  no  ]irecise 
rule.  Tilley  v.  The  Hudson  R.  Co.  29  N.  Y.  252.  Compensation  may  be  given  for  the  loss 
of  a  jiarent's  care  and  training  to  the  surviving  children.  Ibid.  And  it  is  not  necessary  to 
the  nuiintenanee  of  the  action  that  the  person  to  be  indemnified  should  have  had  a  le;/al  right 
to  some  pecuniarv  benefit  which  would  have  resulted  from  the  continuance  of  the  decedent's 
life.  Oldtield  y.  N.  Y.  &  Harlem  R.  Co.  14  N.  Y.  310  ;  Pennsylvania  R.  Co.  v.  M'Closkey's 
Adm'r,  23  Renn.  St.  .526  ;  Penn.<!ylvania  R.  Co.  v.  Bantom,  54  Penn.  St.  495.  If  the  services 
of  the  deceased  mii/ht  have  Iwen  of  some  value  to  the  next  of  kin,  a  nonsuit  should  not  be  di- 
rected. Melntyre  v.  New  York  Cent.  R.  Co.  43  Barb.  532.  And  see  the  Illinois  Central  R. 
Co.  V.  Barron,  infra. 

In  estimating  the  damages,  the  jury  should  consider  the  exact  situation,  annual  earnings, 
health,  habits,  family,  and  estate  of  the  deceased.  The  Chicago  and  Rock  Island  R.  R.  Co.  v. 
Morris  rf  al.  Adm'r.s,  26  111.  400 ;  Bait.  &  Ohio  R.  R.  Co.  v.  State,  use  of  Kelly,  24  Md.  271. 
As  these  statutes  are  for  the  exclusive  benefit  of  the  widow  and  next  of  kin,  the  husband  suing 
as  administrator  of  his  wife  cannot  recover  the  value  of  her  services  to  him.  Dickins  v.  The 
New  York  Central  R.  Co.  23  N.  Y.  158. 

The  action  is  in  most  of  the  States,  as  in  New  York,  for  the  benefit  of  the  widow  and  next 
of  kin.  But  it  is  held  in  Ohio,  where  the  provision  of  law  is  the  same,  that  pecuniary  damage 
will  not  be  presumed  except  where  it  is  for  the  benefit  of  the  widow  and  children.  Adm'x  of 
Michael  Durhene,  deceased,  v.  The  Ohio  Life  and  Trust  Co.  Disney,  257  ;  Donaldson  v.  The 
Mississippi  and  Missouri  R.  Co.  18  Iowa,  280.  See  Lucas  v.  The  N.  Y.  Cent.  R.  Co.  21  Barb. 
245  ;  Green  v.  Hudson  R.  R.  Co.  32  Barb.  25.  And  as  the  damages  should  be  confined  to  com- 
pensation for  the  pecuniary  loss,  it  is  erroneous  to  leave  the  question  of  the  amount  to  the  un- 
controlled discretion  of  the  jury.  The  Pennsylvania  R.  Co.  v.  Vanderver,  36  Penn.  298. 
But  in  such  a  case,  it  is  not  error  for  the  court,  after  laying  down  the  rule  of  law,  to  tell  the 
jury  that  much  is  left  to  their  sound  discretion.  Penn.  R.  Co.  v.  Ogier,  35  Penn.  60. 
And  a  refusal  to  charge  that  "  if  the  deceased  was  largely  indebted  at  the  time  of  his  death, 
the  plaintift"  would  have  no  pecuniary  interest  in  his  life  till  his  debts  were  paid,"  is  proper. 
Ibid.  But  in  Massachusetts  it  has  been  held  in  a  widow's  action  for  her  husband's  death,  the 
fact  that  she  has  children  dependent  upon  her,  does  not  go  to  enhance  the  recovery.  Shaw  v. 
Boston  and  Worcester  R.  Co.  8  Gray,  45.  Under  the  American  as  well  as  English  statutes, 
prospective  loss  may  be  compensated.  Oldfield  v.  N.  Y.  &  Harlem  R.  Co.  14  N.  Y.  310 ; 
Tilley  v.  The  Hudson  R.  R.  Co.  29  N.  Y.  252.  So  in  Ireland,  in  an  action  by  a  widow  for  the 
death  of  her  son,  aged  14,  who  had  never  earned  any  money,  but  whose  capabilities  were 
valued  at  sixpence  a  day,  the  probability  that  he  would  have  earned  more,  or  would  have 
devoted  part  of  his  earnings  to  her  support,  may  be  considered  by  the  jury  on  the  question 
of  danuiges.  Condon  v.  The  Great  Southern  and  Western  R.  Co.  16  Ir.  Law  R.  (N.  S.)  415. 
Prospective  damages  for  the  loss  occasioned  by  the  death  of  a  child  are  usually  limited  by 
what  would  have  been  the  period  of  minority.  State  of  Maryland  to  use  of  Coughian  v.  Bal- 
timore and  Ohio  R.  cited  above.  And  such  damages  must  be  specially  alleged.  GilHgan  v. 
New  York  and  Harlem  R.  Co.  1  E.  D.  S.  (N.  Y.)  453.  But  in  an  action  by  the  father  as  ad- 
ministrator of  his  wife,  there  is  no  sufiftcient  legal  reason  for  limiting  the  damages  sustained  by 
the  children  from  the  loss  of  her  care  to  their  minority,  if  the  jury  are  legally  persuaded  they 
Avould  continue  afterwai'ds.  Tilley  v.  The  Hudson  River  R.  Co.  29  N.  Y.  252.  See,  as  to  the 
practice  and  pleading  in  these  actions,  Baker  v.  Bailev,  16  Barb.  (N.  Y.)  54  ;  SafFord  v.  Drew, 
3  Duer,  627,  640  ;  Lynch  v.  Davis,  12  How.  Pr.  R.  323. 

An  authoritative  construction  has  lately  been  given  to  these  acts  by  the  Supreme  Court  of 
the  United  States,  and  a  broad  and  untechnical  view  taken  of  their  remedial  purpose,  in  a  case 
arising  under  the  law  of  Illinois,  the  provisions  of  which  are  the  same  with  those  of  New  York 
already  cited.  The  defendant  in  error,  executor  of  William  T.  Barron,  deceased,  brought  his 
action  against  the  plaintitf  in  error  for  damages  occasioned  by  the  death  of  his  testator,  caused 
by  the  negligence  of  the  defendant  below. 

The  testator  was  a  bachelor,  about  thirty-five  years  of  age,  and  owned  an  estate  worth  from 
$30,000  to  $40,000.  The  plaintiff  was  his  "father,  and  he  left  brothers  and  sisters,  one  of  whom 
had  formerly  received  some  assistance  from  him  for  her  support.  A  verdict  of  $4,000  having 
been  found  for  the  plaintiff  and  judgment  entered  thereon,  the  company  took  out  a  writ  of 
error  to  this  court,  on  the  argument  on  which,  it  was  insisted,  that  in  order  to  recover  more 
than  nominal  damages,  it  was  necessary  to  show  that  there  were  next  of  kin  in  existence  en- 
titled to  claim  the  indemnity  given  by  law,  and  that  they  had  sustained  a  pecuniary  loss  justi- 


648  TRESPASS    TO    PERSON    OR   PROPERTY.  [CH.    XXII. 

Such,  too,  is  the  doctrine  in  tliis  country.^  So  in  New  York, 
where  a  lunatic  in  charge  of  his  father  was  killed  by  being  run 
over  by  a  railway  car;  but  it  appeared  that  his  death  was 
owing  not  to  the  negligence  of  the  railway  company  or  its 
agents,  but  to  the  carelessness  of  the  father  of  the  lunatic,  —  it 
was  held  that  no  recovery  could  be  had.* 

Except  in  the  Aggravated  Cases  the  Relief  in  Trespass 
SHOULD  BE  Restricted  to  Compensation.  —  In  regard  to  personal 
trespasses  generally,  they  are  so  frequently  accompanied  by  cir- 
cumstances of  aggravation  that  the  question  of  strict  compen- 
sation is  rarely  raised.  But  even  in  this  class  of  cases,  we  find 
the  same  effort  to  restrict  the  relief  within  legal  limits.^ 

*  Willetts  V.  Buffalo  and  Rochester  E.  R.  Co.  14  Barb.  S.  C.  R.  585. 

fyino;  the  claim.  It  was  urged,  that  as  the  intention  of  the  act  under  which  the  action  was 
brouuht,  was  simply  to  compensate  the  widow  and  next  of  kin  of  the  person  killed  for  the 
pecuniary  injury  they  sustained  by  his  death,  if  the  death  caused  them  no  pecuniary  injury, 
the  act  gave  them  no  damages.  His  next  of  kin  could  not  properly  be  said  to  sustain  any 
pecuniary  loss  by  his  death.  Indeed,  instead  of  a  pecuniary  loss  to  them,  his  death  gave  them 
an  estate  of  great  value,  which  otherwise  they  could  not  have  received,  and  which  they  might 
never  receive. 

But  the  court  after  remarking  on  the  absence  of  a  fixed  measure  of  compensation,  and  the 
large  discretion  allowed  the  jury  in  these  actions,  as  in  others  for  personal  injuries,  overruled 
these  suggestions.  "A  suit  is  given"  by  the  act,  said  Mr.  Justice  Nelson,  in  delivering  its 
opinion,  "  against  the  wrong-doer  in  every  case  by  the  representative  for  the  benefit  of  the 
widow  and  next  of  kin,  where  if  death  had  not  ensued,  the  injured  party  could  have  maintained 
the  suit.  The  only  relation  mentioned  by  the  statute  to  the  deceased  essential  to  the  mainte- 
nance of  the  suit,  is  that  of  widow  or  next  of  kin  ;  to  say  they  must  have  a  legal  claim  on  him 
for  support,  would  be  an  interpolation  in  the  statute,  changing  the  fair  import  of  its  terms." 
The  Illinois  Central  Railroad  Co.  v.  Barron,  5  Wallace,  90.  The  object  of  the  Massachusetts 
statute  (Laws  1842,  c.  89,  §  1  ;  Gen.  Stat.  1860,  c.  127  ;  ante  466,  note  and  552,  note),  as  will 
have  been  observed,  is  entii'ely  different  from  that  of  the  other  modem  legislation  on  this 
subject  which  we  have  been  considering.  Under  this  statute,  the  Supreme  Court  of  the  State 
have  held,  by  what,  in  view  of  the  learning  and  eminence  of  that  tribunal,  we  dai-e  not  pro- 
nounce a  too  rigorous  construction,  that  no  action  lies  where  the  death  ensued  instantaneously 
on  the  injur}'.  This  is  on  the  ground  that  no  right  of  action  ever  accrued  to  the  deceased,  and 
none,  conse(niently,  could  survive  to  his  representatives.  Kearney  v.  The  Boston  and  Worces- 
ter R.  Co.  9  Cash.  108. 

1  Huelsenkamp  v.  Citizens'  Railway  Co.  34  Mo.  45. 

2  The  damages  for  a  personal  injury  in  cases  of  simple  trespass  free  from  malice,  or  of  simple 
negligence  (where  the  rule  seems  to  be  the  same),  should  as  far  as  a  money  standard  is  appli- 
cable, be  such  as  to  compensate  the  injured  party  for  such  loss  of  time,  medical  and  other  ex- 
penses, physical  pain,  and,  as  it  seems,  also  mental  distress,  as  are  fairly  and  reasonably  the 
plain  consecjuences  to  him  of  the  injury.  Peoria  Bridge  Association  v.  Loomis,  20  111.  235  ; 
Hunt  V.  Hoyt,  20  111.  544  ;  Morse  v.  The  Auburn  and  Syracuse  R.  Co.  10  Barb.  (N.  Y.)  621 ; 
Ransom  v.  N.  Y.  and  Erie  R.  Co.  15  N.  Y.  415  ;  Keyes  v.  Devlin,  3  E.  D.  S.  (N.  Y.)  C.  P.  R. 
518  ;  West  v.  Forrest,  22  Mo.  344  ;  Bannon  v  Bait.  &  Ohio  R.  R.  Co.  24  Md.  108.  The  latter 
element  of  compensation  is  very  clearly  justified  by  the  decisions  in  the  State  of  Connecticut, 
which  hold  that  the  plaintift'  is  entitled  to  a  pecuniary  equivalent  for  the  apprehensions  and 
anguisli  of  mind  naturally  excited  by  the  risk  and  danger  at  the  time  of  the  injury.  Seger  v, 
Barkhamsted,  22  Conn.  290 ;  Masters  v.  Town  of  Warren,  27  Conn.  293 ;  Lawrence  v.  Housa- 
tonic  R.  Co.  29  Conn.  390.  So  also  in  Maine,  Mason  v.  The  Inhabitants  of  Ellsworth,  32 
Maine,  271.  And  in  California.  Fairchild  v.  Cal.  Stage  Co.  13  Cal.  599.  If  the  injury  be 
permanent,  compensation  should  be  given  for  the  future  as  well  as  present  disability.  Frink 
V.  Schroycr,  18  111.  416  ;  Slater  v.  Rink,  18  111.  527.  And  in  ascertaining  the  pro]icr  amount 
in  such  case,  it  is  proper  for  the  jury  to  inquire  into  the  nature  of  the  plaintifi"s  previous 
occupations  (Nebraska  City  v.  Campbell,  2  Blackf  590),  and  the  kind  and  amount  of  the 
physical  and  mental  labor  to  Avhich  he  has  been  accustomed.  Ballou  v.  Farnum,  11  Allen,  73  ; 
Caldwell  v.  Murphy,  1  Duer,  233  ;  affirmed,  1  Kern.  416.    In  determining  this  item  of  com- 


CH.    XXII.]  FALSE   IMPRISONMENT.  649 

False  Imprisonment.  —  So  in  New  York,  it  has  been  held  that 
evidence  of  the  vahie  of  the  services  of  an  attornej^,  in  getting 
rid  of  an  illegal  arrest,  is  not  admissible  in  an  action  of  false  im- 
prisonment brought  for  such  arrest,  where  such  expenses  are  not 
speciall^^  laid  in  the  declaration ;  ^  expenses  thus  incurred  not 
being  the  legal  and  natural  consequences  of  the  act  complained 
of*  2 

*  Strang  v.  Whitehead,  12  Wend.  64. 

pensatiou,  the  profits  of  a  futnrc  business  of  which  he  has  been  deprived,  are  in  general  too 
remote  as  an  clement  in  the  estimate  of  the  damages  (Ibid.),  although  it  has  been  said  that  he 
is  entitled  to  recover  for  the  diminution  of  the  receipts  of  his  business  resulting  from  such 
inabilitv  to  atteiul  to  it  as  the  injury  caused  him.  Kinney  v.  Crocker,  18  Wis.  74.  This  latter 
point  is  distinctly  held  in  Hanover  K.  R.  Co.  v.  Coyle,  55  Penn.  396.  The  plaintitl'  in  that 
case  was  a  peddler  and  on  the  trial  below  he  offered  to  prove  the  nature  and  character  of  his 
business,  and  the  e.\teut  of  the  loss  of  time,  and  also  percentage  on  the  goods  sold  by  him  in 
his  usual  course  of  business,  the  loss  of  interest  of  money  received  for  the  same,  in  conse- 
quence of  the  injuries  received,  and  the  annual  amount  of  sales  made  by  him.  The  evidence 
was  admitted  against  the  objection  of  the  defendant,  who  excepted.  On  error  it  was  held  by 
the  Supreme  Court  that  the  evidence  had  been  correctly  admitted  as  bearing  directly  upon  the 
question  of  damages  in  affording  a  means  of  computing  the  plaintiff's  loss  for  the  time  he  was 
confined  by  his  injuries  and  prevented  from  carrying  on  his  business. 

Where  successive  actions  may  be  brought  for  a  continuous  wrong,  as  in  the  case  of  a  con- 
tinued trespass  upon  land,  the  damages  in  each  suit  are  very  properly  limited  to  those  sus- 
tained by  the  plaintiff  at  its  commencement ;  but  for  an  injury  to  the  person  resulting  from  a 
single  act,  a  single  action  only  can  be  brought,  and  it  would  therefore  be  manifestly  unjust  not 
to  take  into  consideration  upon  the  trial  the  nature  and  extent  of  the  injury  in  all  its  conse- 
quences ;  since  by  not  so  doing,  the  plaintiff  in  many  cases  would  be  deprived  of  the  larger 
portion  of  the  compensation  he  might  justly  claim,  and  the  damages  given  be  wholly  dispro- 
portioned  to  the  injury  sustained.  Caldwell  v.  Murphy,  supra.  Much  latitude  is  necessarily 
given  tlie  jury  in  these  cases,  and  the  Supreme  Court  of  California  in  enlarging  upon  the  sound 
and  familiar  rule  that  courts  will  not  disturb  the  verdict  in  cases  of  personal  tort  unless  it  is 
obviousljr  not  the  result  of  cool  and  dispassionate  deliberation,  broadly  declare  that  in  such 
actions  "  the  law  does  not  attempt  to  fix  any  precise  rule  for  the  admeasurement  of  damages, 
but  from  the  necessity  of  the  case  leave  the  assessment  to  the  good  sense  and  unbiased  judg- 
ment of  the  jury."  Aldrich  v.  Palmer,  24  Cal.  51.3.  So  in  a  very  late  case,  the  Supreme  Court 
of  the  United  States  say  that  in  these  actions  "  there  can  be  no  fixed  measure  of  compensation 
for  the  pain  and  anguish  of  body  and  mind,  nor  for  the  loss  of  time  and  care  in  business,  or  the 
permanent  injury  to  health  and  body."  Illinois  Central  R.  Co.  v.  Barron,  5  Wallace,  90, 
supra.  The  considerations,  however,  already  stated,  should  be  pointed  out  by  the  court  when- 
ever applicable,  and  the  jury  should  not  disregard  or  overstep  them.  But  the  court  can  never 
confine  a  jury  to  either  nominal  or  special  damages  if  there  has  been  a  real  personal  injury,  and 
every  deprivation  of  liberty  is  so  regarded.  It  is  for  the  jury  themselves  to  determine  whether 
the  circumstances  should  reduce  the  recovery  to  a  minimum.  Therefore,  where  the  plaintiff, 
in  an  action  for  false  imprisonment,  had  not  been  locked  in  a  cell,  but  allowed  free  range  within 
the  limits  of  the  jail  yard,  and  had  his  meals  at  the  jailer's  table,  it  was  held  erroneous  to  in- 
struct the  jurv  that  he  was  entitled  only  to  recover  damages  for  the  loss  of  his  time.  Page  v. 
Mitchell,  i.3  Mich.  63. 

1  Costs  actually  ])aid  in  the  former  action  and  properly  alleged  are  recoverable.  Pritchet  v. 
Boevey,  1  Cro.  &"M.  775. 

2  "Where  a  party,"  said  Erie,  C.  J.,  in  the  case  of  Bradlaugh  v.  Edwards,  11  C.  B.  377, 
"  has  been  illegally  imprisoned,  and  has  been  put  to  expense  in  procuring  bis  discharge,  he 
may  very  well  urge  that  fact  before  the  jury  as  an  aggravation,  but  he  has  no  right  to  demand 
to  be  reimbursed  ex  debito  justitice." 

And  the  t:ourt  refused  to  grant  a  new  trial  on  the  ground  that  the  plaintiff  had  incurred  an 
expense  of  £7  14s.  in  procuring  his  discharge  from  custody  at  a  police  station  where  he  had 
been  detained  on  a  charge  of  assault  which  proved  imfounded. 

It  has  been  held,  however,  in  New  York,  that  in  an  action  for  false  imprisonment,  the  plain- 
tiflP  may  recover  damages  for  the  time  spent,  and  expenses  incurred,  in  procuring  his  dis- 
charge upon  habeas  corpus,  where  the  application  for  the  discharge  was  not  palpably  unneces- 
sary. It  does  not  appear,  from  the  opinion,  that  these  damages  were  specially  alleged.  Blythe 
i:  Tompkins,  2  Abbott's  Pr.  R.  468.  So  where  the  plaintift',"who  had  been  committed  to  jail 
for  manslaughter,  by  a  coroner's  warrant,  was  afterwards  admitted  to  bail,  and  subsequently 
got  the  inquisition  under  which  he  had  been  committed  quashed,  it  was  held,  in  an  action 


650  TRESPASS    TO    PERSON    OR   PROPERTY.  [CH.    XXII. 

Justification  in  this  Action.  —  An  action  of  trespass  being 
brought  for  false  imprisonment,  and  a  plea  that  the  defendant 
had  committed  a  felony  being  put  in,  it  was  held  not  to  be  a 
misdirection,  that  the  judge  told  the  jury  that  the  putting  of 
such  a  plea  on  the  record  was  a  persisting  in  the  charge  con- 
tained in  it,  and  was  to  be  taken  into  account  by  them  in  esti- 
mating the  damages.* 

In  an  action  of  false  imprisonment,  the  defendant  had  given 
the  plaintiff  into  custody  on  a  charge  of  felony.    The  magistrate 

heard  the  charge,  and  remanded  the  prisoner.  It  subse- 
[553]   quently  appearing  that  the  charge  had  been  made  under 

a  mistake,  the  plaintiff  was  released.  The  declaration 
charged  the  first  arrest  and  the  remand  as  distinct  acts  of  tres- 
pass, and  damages  were  given  for  both,  although  the  latter  was 
the  act  of  the  magistrate,  on  the  ground  that  the  wrong-doer 
was  responsible  for  it  as  the  consequence  of  his  wrongful  act ; 
but  it  was  held  erroneous,  and  a  new  trial  was  granted,  on  the 
ground  that  the  defendant  was  not  responsible  for  the  act  of  the 
magistrate.! 

Action  for  Negligence  —  Loss  of  Permanent  Situation.  — 
Where  the  butler  of  a  London  club  brought  his  action  against 
an  architect,  employed  to  do  repairs  on  the  club-house,  and  his 
agents,  and  averred  that  they  put  in  gas  so  negligently  that  it 
exploded,  and  crippled  the  plaintiff  for  life,  and  he  was  dis- 
charged for  incapacity  to  do  the  duties  of  his  place,  it  was 
insisted  for  the  plaintiff  that  the  measure  of  damages  was  the 
amount  of  money  which  would  be  required  to  purchase  an  an- 
nuity for  the  plaintiff  adequate  to  the  sum  which  he  was  receiv- 
ing from  the  club  ;  but  Lord  Abinger  ruled  otherwise ;  and  after 
commenting  on  the  fact  that  neither  party  was  in  actual  fault, 
said,  "If  it  be  asked  that  the  jury  are  to  give  damages  equal  to 
an  annuity,  it  may  be  demanded,  what  right  has  the  plaintiff  to 
calculate  that  he  would  have  continued  in  office  to  the  end  of 
his  life.  I  think  it  would  be  absurd  to  make  the  value  of  the 
annuity  the  measure  of  damages."  t 

*  Warwick  v.  Foulkes,  12  Mees.  &  Wcls.  to   this  in  the   Scotch   books.     In   Leven  v. 

507.  Young,  action  for  defamation,  in  consequence 

t  Lock  V.  Ashton,  12  Q.  B.  R.  871.  of  which  the  ]>laintiif  was  removed  from  his 

I  Rapson  v.  Cuhitt,  1    Car.   &   Marsh.  64  office,  which  was  one  dependent  on  the  will  of 

(9  Mees.  &  W.  710).     I  find  an  analogous  case  his  superiors,  it  was  held  that  the  jury  must 

against  the  coroner  for  false  imprisonment,  in  which  was  alleged  as  special  damage  that  he  had 
been  obliged  to  pay  money  in  procuring  his  discharge  from  custody,  that  he  was  entitled  to  re- 
cover the  costs  of  quashing  the  inquisition.     Foxhall  v.  Barnctt,  22  Eng.  L.  &  Eq.  179. 

So  in  Virginia,  the  plaintitf  in  this  action  may  recover  for  the  loss  of  time,  the  interruption 
to  his  business,  his  bodily  and  mental  sutfering,  besides  his  costs  and  reasonable  counsel  fees  in 
obtaining  his  release.     Parsons  v.  Harjjer,  16  Grat.  (Va.)  64. 


CH.   XXII.]  INJURIES    TO    FEELINGS.  651 

AVe  have  already  discussed  the  question,  whether  even  in 
actions  on  the  case  for  negligence,  counsel  fees  can  be  estimated 
in  the  damages.* 

Loss  OF  Service  —  Forms  of  Action.  —  In  trespass  for  assault 
on  the  child  or  servant  of  plaintiff,  the  ground  of  action  being 
the  loss  of  service,  the  measure  of  damages  is  the  actual  loss 
which  the  plaintiff  has  sustained,  and  if  illness  follows,  the  ex- 
penses attending  such  illness ;  ^  but  exemplary  damages  cannot 
be  recovered.  These  last  are  only  given  to  the  injured  child  or 
servant,  if  he  brings  his  action  in  his  own  name.f  This  has 
been  so  held  in  New  York,  in  regard  to  an  assault,  and 
on  technical  reasoning  appears  just ;  but  if  this  doctrine  [554] 
be  applied  to  cases  of  seduction,  the  remedy  for  that  out- 
rage, already  but  too  imperfect,  will  be  deprived  of  the  only 
efficiency  it  possesses.^  Nor  is  it  improper  in  this  connection  to 
call  attention  again  to  the  great  incongruity  and  injustice  result- 
ing from  the  adoption  of  technical  forms  of  action,  and  which 
in  fact  make  legal  rights  depend  on  mere  legal  technicalities. 
The  Supreme  Court  of  New  York  appear  to  have  been  pressed 
by  this  difficulty  in  the  case  in  question  ;  for  they  say,  in  lan- 
guage already  cited,  "  The  action  for  seduction  is  peculiar,  and 
would  seem  to  form  an  exception  to  the  rule  that  actual  dam- 
ages only  can  be  recovered  when  the  action  is  for  loss  of  service 
consequential  upon  a  direct  injury ;  but  there  the  party  directly 
injured  cannot  sustain  an  action,  and  the  rule  of  damages  has 
always  been  considered  as  founded  on  special  reasons  only  ap- 
plicable to  that  case." 

Injuries  to  Feelings.  —  It  has  been  intimated  that  neither  in 
actions  of  this  description,  nor  for  frauds,  can  damages  be  allowed 
for  injury  to  feelings  or  reputation.^  In  an  action  brought  by 
a  father  for  an  assault  on  a  son,  jwr  quod  serTitium  amisii,  the 
judge  who  tried  the  cause  having  charged  that  the  jury  in  mak- 
ing up  their  verdict,  might  take  into  account  the  feelings  of  the 
parent,  a  new  trial  was  ordered,  on  the  ground  that  the  suit  be- 
ing for  loss  of  service,  and  the  child  also  having  a  right  of 

take  into  consideration  both  the  nature  and        *  Lincoln   v.  Saratoga  &  Sch'y  R.  R.  23 
tenure  of  the  office,  and  not  give  the  value  of    Wend.  425  ;  ante,  95,  et  seq. 
an  annuity  certain.     1  Murray,  350,  384.  t  Whitney  v.  Hitchcock,  4  Denio,  461. 

t  Richards  v.  Farnham,  13  Pick.  451. 

1  So  in  other  actions  for  injuries  to  a  child.  Pennsvlvania  R.  R.  Co.  v.  Kelly,  31  Penn. 
State  R.  372;  Pennsylvania  R.  R.  Co.  v.  Zebe,  33  Penn.  318. 

'^  It  is  now  well  settled,  that  exemplary  damages  may  be  had  in  these  actions.  Ante,  466, 
note  1 ;  542,  and  note. 


652  TRESPASS   TO    PERSON    OR    PROPERTY.  [ciI.    XXII. 

action  against  the  defendant,  the  direction  was  wrong.  But  in 
cases  proper  for  exemplary  damages,  I  suppose  no  such  line  as 
this  can  practically  be  drawn. 

In  Massachusetts,  it  has  been  held  that  under  the  provisions 
of  their  statute,*  by  which  towns  are  made  liable  for  injuries 
sustained  by  not  keeping  roads  or  bridges  in  repair,  no  damage 
can  be  given  for  fright  or  mental  suffering  resulting  from  mere 
risk  or  peril ;  but  where  an  actual  injury  has  been  sustained, 
however  small,  attended  by  mental  suffering,  the  jury  can  take 
that  mental  suffering  into  their  estimate.!  ^  It  is  evident  that 
the  inquiry  here  becomes  of  a  very  metaphysical  character. 

Suits  for  Freedom.  —  During  the  existence  of  slavery  in  Vir- 
ginia, the  action  in  use  for  the  recovery  of  the  freedom  of  per- 
sons alleged  to  be  slaves,  was  trespass  vi  et  armts,  for  assault  and 

battery,  and  false  imprisonment.  But  the  object  was  sim- 
[555]  ply  to  remove  the  claimant  from  the  status  of  slavery  to 

that  of  freedom.  The  form  was  fictitious,  and  the  damages 
nominal ;  nor  could  the  persons  so  held  recover  the  profits  of 
their  labor  for  the  time  that  they  were  illegally  held  in  slavery, 
even  though  it  was  done  with  a  full  knowledge  of  their  right  to 
be  free,  and  although  the  suit  was  protracted  on  frivolous  pre- 
texts.t  In  Louisiana,  one  held  in  slavery  by  a  person  who  pur- 
chased him  in  good  faith,  believing  him  to  be  a  slave,  might  re- 
cover against  the  latter  wages  for  the  time  of  his  confinement 
in  jail  during  the  suit  for  freedom,  with  a  fair  allowance  in  ad- 
dition as  damages  for  the  imprisonment;  but  no  damages  or 
wages  were  allowed  for  any  period  anterior  to  the  institution 
of  the  suit.§ 

[556]  Control  exercised  by  the  Court.  —  The  power  of  the 
court  over  the  measure  of  relief  is  constantly  exercised, 
even  in  cases  of  fraud.  This  is  invariably  so  as  to  remote  and 
consequential  damages.  The  rules  in  this  respect  we  have 
already  considered,  and  they  are  uniformly  applied  in  cases  of 
fraud  as  well  as  all  others.  So,  in  a  case  in  England,  where  the 
defendant  was  sued  for  false  representations  in  regard  to  the 
credit  of  his  son,  where  it  appeared  that  the  plaintiffs  had  trusted 

*  Rev.  Stat.  c.  25,  §  22.  f  Peter  v.  Hargrave,  5  Grattan,  12. 

t  Canning  v.  Inhabitants  of  Williamstown,         §  Coby  v.  Kock,  3  La.  Ann.  R.  439. 
1  Cusliing,  451. 

^  In  an  action  by  a  passenger  against  a  carrier  for  injuries,  compensation  may  be  given  for 
pain  of  mind  as  well  as  body.  Fairchild  v.  California  Stage  Co.  13  Cal.  599.  See  a?ite,  552, 
note  3. 


CH.    XXII.]  FRAUD.  653 

the  son  for  a  length  of  tune,  and  to  an  amount  which  might  be 
considered  ill-judged  and  excessive,  even  if  the  representations 
had  been  true,  —  Tindall,  C.  J.,  charged  the  jury,  "As  to  the 
damages,  the  verdict  must  be  for  such  damage  as  is  justly  and 
immediately  referrible  to  the  falsehood  of  the  statement.  The 
goods  first  purchased  have  been  paid  for,  but  six  hundred  pounds' 
worth  since  have  not,  and  the  son  was  made  a  bankrupt  by  the 
plaintiff  in  the  month  of  October.  You  must  say  how  much  of 
this  is  justl}^  and  immediately  referrible  to  the  false  statement. 
That  is  a  problem  which  you  must  solve  for  yourselves.  I  will 
only  make  an  observation,  and  that  is,  if  they  give  the  son  an 
indiscreet  and  ill-judging  credit,  they  cannot  in  fairness  call  on 
the  father  to  be  answerable  for  the  loss  occasioned  by  it."  *  The 
language  of  the  eminent  judge  is  particularly  deserving  of  no- 
tice ;  for  if,  in  cases  of  this  kind,  the  principles  that  exclude  re- 
mote damages  are  not  adhered  to,  the  whole  subject  of  remu- 
neration would  be  in  the  hands  of  the  jury.^ 

False  Eepresentations.  —  So,  where  f  case  was  brought  for 
fraud  and  deceit  in  the  sale  of  a  vessel,  which  was  represented 
to  be  British,  whereas  in  fact  she  was  Spanish,  Story,  J.,  before 
whom  the  cause  was  tried,  held  the  rule  of  damages  to  be  the 
difference  between  the  value  of  the  vessel  if  she  had  been  what 
she  was  represented  to  be,  and  her  actual  value,  together 
with  such  part  of  the  costs  of  repairs  laid  out  on  her,  on  [557] 
faith  of  the  false  representations,  as  the  jury  should  see 
fit  to  allow.     He  said, — 

"  The  true  rule  of  damages  in  cases  of  this  nature  is,  to  allow  the  difference  be- 
tween the  value  of  the  vessel,  if  her  real  character  had  been  known,  and  the 
price  at  which  she  was  bought,  under  the  faith  of  her  being  a  vessel  entitled  bond 
fide  to  the  privileges  and  benefits  of  such  a  British  character.  To  this  extent  at 
least,  he  has  sustained  a  loss.  Now  it  is  in  proof,  that  as  a  Spanish  vessel,  at  the 
time  of  the  purchase,  she  was  not  worth  more  than  $500,  that  is,  than  the  value 
of  her  materials  if  she  were  broken  up.  As  a  British  vessel  she  was  worth 
$1,500,  and  on  the  faith  of  the  representation  made  of  her  possessing  such  char- 
acter, the  plaintiff  gave  that  sum  for  her.  The  difference  between  these  sums  is 
a  loss  actually  sustained  by  the  plaintiff;  for  he  had  paid  $1,000  more  for  the 
vessel  than  she  was  worth,  and  that  upon  a  false  representation  of  the  defendant. 
But  it  further  appears,  that  upon  the  faith  of  this  representation  the  plaintiff 
went  on  and  expended  about  $1,900  in  repairs ;  and  I  am  of  opinion  that  of  this 
sum  the  jury  are  at  liberty  to  allow  the  plaintiff  such  portion  as  they  deem  rea- 
*  Corbett  v.  Brown,  5  C.  &  P.  363.  t  Sherwood  v.  Sutton,  5  Masou,  1. 

1  Sco  Collins  V.  Cave,  6  H.  &  N.  131,  affirming  4  H.  &  N.  225  (Exch.). 


654  TRESPASS    TO    PERSON    OR    PROPERTY.  [ciI.    XXn. 

sonable,  to  remunerate  any  loss  for  which  the  plaintiff  has  not  received  any  in- 
demnity, or  compensation  by  tlie  subsequent  earnings  of  the  ship  or  otherwise ; 
for  the  loss  was  a  direct  consequence  of  the  fraudulent  representation." 

And  it  has  been  held  in  Massachusetts,  in  an  action  on  the 
case,  where  the  defendant  being  part  owner  of  a  vessel,  by 
fraudulent  representations  persuaded,  the  attorney  of  the  plain- 
tiff, during  his  absence,  to  sell  him  the  vessel  at  a  less  price  than 
its  value,  and  afterward  himself  sold  it  for  a  greater  price,  that 
if  the  latter  sale  was  an  actual  sale,  the  sum  realized  at  it  would 
be  the  proper  measure  of  damages ;  "  because  it  would  be  un- 
just to  permit  the  fraudulent  party  to  retain  the  fruits  of  his 
fraud,"  and  because  the  plaintiff,  if  not  deceived,  might  have  ob- 
tained the  larger  sum ;  but  the  court  allowed  the  defendants  to 
show  that  the  price  which  they  paid  was  the  true  and  full  value 
of  the  plaintiff's  share,  both  in  order  to  disprove  the  fraud,  and. 
as  proper  for  the  consideration  of  the  jury  on  the  question  of 
damages.* 

So  in  Connecticut,  in  an  action  against  the  vendor  of  a  horse 
for  false  representations,  the  plaintiff  cannot  recover  the  ex- 
penses of  keeping,  previous  to  an  offer  to  return  the  horse. t  ^ 

[558]  Conspiracy.  —  At  common  law  there  was  a  writ  of  con- 
spiracy, which  strictly  only  lay  where  the  conspiracy  was 
to  indict  the  party  either  of  treason  or  felony,  by  which  his  life 
was  in  danger.  There  is  also  a  well-known  action  on  the  case 
of  similar  character  but  wider  scope.  In  this,  as  also  in  the  ac- 
tion for  fraud,  the  damage  is  the  gist  of  the  action ;  fraud  and 
damage  must  concur  to  give  an  action  ;  and  by  damage  is  meant 
legal  damage.  And  so,  where  a  conspiracy  had  been  formed  to 
induce  a  testator  by  fraudulent  representations  to  revoke  his 
will  devising  certain  property  to  the  plaintiff,  it  was  held  that 
no  right  of  the  intended  devisee  having  been  interfered  with,  he 
could  not  maintain  an  action.^ 

_  *  Matthews  v.  Bliss,  22  Pick.  48.     This  de-  t  "West  v.  Anderson,  9  Conn.  107. 

cision  would  appear  to  assume  that  the  object  {  Hutchins  v.  Hutchins,  7   Hill,   104.     See 

of  the  jury  was  merely  to  give  compensatory  also,  Savile  v.  Roberts,    1   Lord  Raym.  374 ; 

damages;  because,   as  we  have  already  said,  S.  C.  12  Mod.  208;  1   Salk.   13;  Skmner  v. 

fraud  is  frequently  a  case  for  vindictive  or  ex-  Gunton,  1    Saund.   228 ;    Jones  v.  Baker,   7 

cmplary  damages,  unless,  perhaps,  in  Massa-  Cowen,  445. 
chusetts. 

1  Where  the  plaintiff,  a  livery-stable  keeper,  had  taken  the  defendant's  horse  to  keep  in  his 
stable,  relying  on  the  defendant's  representation  that  the  horse  was  well,  which  was  untrue,  and 
the  horse  having  the  distemper  communicated  it  to  two  stallions  of  the  plaintiff,  who  were 
thereby  incapacitated  for  service  during  the  season,  it  was  held  that  evidence  of  what  would 
have  been  their  probable  earnings  during  the  season  but  for  the  distemper,  was  proper  for  the 
consideration  of  the  jury  in  estimating  the  damages.  Fultz  v.  Wycoff,  2.5  Ind.  321.  See 
ante,  295,  note  2,  also  (as  to  fraud  and  falsehood  to  warranty  of  title  to  a  colt),  Brown  v. 
Woods,  3  ColdweU  (Tenn.),  182. 


CII.    XXil]  FRAUD.  655 

On  the  same  principle  it  has  .been  decided  in  England  that 
case  will  not  lie  against  two  persons  for  conspiring  together  ma- 
liciously and  vexatiously,  and  without  reasonable  or  probable 
cause  to  commence  an  action  against  the  plaintill'  in  the  name 
of  a  third  person  but  for  their  own  benefit,  without  an  allegation 
of  legal  damage  resulting  therefrom.* 

Other  Frauds.  —  In  Kentucky,  where  suit  was  brought  for 
fraud  in  assigning  a  note  for  which  the  plaintiff  had  given  cer- 
tain property,  the  court  held  that  the  value  of  the  property,  and 
not  the  amount  of  the  note,  was  the  proper  measure  of  dam- 
ages ;  though  they  considered  "  the  precise  amount  to  be  recov- 
ered by  the  plaintiff  a  matter  for  the  consideration  and  decision 
of  the  jury."  f 

In  the  same  State,  in  an  action  on  the  case,  for  fraud  in  regard 
to  the  title  of  a  slave  sold,  the  Court  of  Appeals  said,  — 

"  This  is  an  action  on  the  case  for  fraud,  and  the  criterion  of  damages  is  in 
such  cases  in  a  great  measure  left  to  the  judgment  of  the  jury.  The  law  no 
doubt  requires  that  the  compensation  in  damages  should  equal  the  injury  occa- 
sioned by  the  fraud,  and  that  injury  was  equal  to  the  value  of  the  slave  lost,  and 
the  price  agreed  to  be  given  was  no  doubt  strong  evidence  of  that  value.  But 
to  decide  that  interest  should  be  given  on  that  value  as  a  matter  of  law,  was  fix- 
ing a  criterion  which  trameled  the  discretion  of  the  jury,  who  might  give  or 
withhold  it,  as  to  them  should  seem  equitable.  If  the  plaintiff  in  this  instance 
had  elected  to  bring  assumpsit  for  the  money  paid,  or  to  treat  the  sale  as  a  nul- 
lity, he  would  not,  according  to  the  best  authorities,  have  been  entitled  to  the 
interest  thereon  as  a  matter  of  law."  X 

Fraud  in  Sale  of  Lands. — Action  for  Deceit. — The  same 
general  principle  also  prevails  where  fraud  is  involved  in  the 
sale  of  lands.  The  subject  of  fraud  in  the  sale  of  chat- 
tels we  have  already  examined.§  In  a  recent  case  in  [559] 
New  York,  the  Court  of  Appeals  said,  "The  measure  of 
damages  in  an  action  upon  a  warranty,  and  for  fraud  in  the  sale 
of  personal  property,  are  the  same.  In  either  case  they  are  de- 
termined by  the  difference  in  value  between  the  article  sold, 
and  what  it  should  be  according  to  the  warranty  or  representa- 
tion." The  same  rule,  I  apprehend,  holds  upon  the  sale  of  real 
estate  where  the  action  is  for  deceit. ||  ^ 

*  Cotterell  v.  Jones,  11  C.  B.  713.  action  was  for  fraud  in  selling  a  note,  as  good, 

t  Crews  V.  Dabney,  1  Littell's  R.  278.  which  had  been  paid.     Spikes  v.  English,  4 

J  Jackson,  Ex'r,  v.  Holliday,  Adm'r,  3  Mon-  Strobhart,  34. 

roe,  363.     See  also,  in  New  York,  Voorhees  v.        §  Ante,  295. 

Earl,  2  Hill,  288,  as  to  fraud  in  sale  of  chat-        ||  Whitney  v.  Allaire,  1  Comstock,  305. 

tels.     See  a  case  in  South  Carolina,  where  the 

1  Such  difference  in  value  must  be  estimated  at  the  time  of  the  sale.     Gaulden  v.  Sheheo,  24 


656  TRESPASS    TO    PERSON    OR    PROPERTY.  [CH.    XXII. 

It  is  well  settled,  that  where,  previous  to  or  at  the  time  of  the 
conveyance,  the  vendor  makes  material  representations  in  re- 
gard to  the  character  of  the  property,  Avhicli  are  known  by  him 
to  be  false,*  he  is  liable  in  an  action  on  the  case  for  the  deceit. 
And  the  grantee  is  not  confined  to  his  remedy  on  the  covenants 
in  the  conveyance.  This  applies,  however,  only  to  cases  of 
fraud,  and  not  to  those  where  the  seller  merely  warmly  recom- 
mends his  property.  These  are  governed  by  the  maxim  of  the 
civil  law,  simplex  commendatio  non  ohligat.\ 

Sot  in  New  York,  where  the  defendant,  a  public  officer,  fraud- 
ulently misrepresented  certain  premises  as  free  from  incum- 
brance.^ 

So,§  where  a  false  representation  was  made  as  to  the  amount 
for  which  the  property  rented.  So,||  where  the  vendor  of  a 
public  house  during  the  treaty,  made  false  representations  as  to 
the  amount  of  business  done.  And  the  principle  has  been  since 
again  affirmed  in  England.^ 

It  had  been  doubted  for  some  time  whether  fraudulent  repre- 
sentations as  to  the  title  to  land,  would  give  an  action, 
[560]  but  that  seems  now,  in  New  York  at  least,  put  at  rest, 
since  the  case  just  cited.** 

And  so  ft  as  to  false  representations  regarding  either  the  loca- 
tion or  the  cost  of  land  conveyed.  And  in  this  latter  case  it 
was  held  that  to  an  action  of  covenant  to  recover  the  price  of 
land,  such  fraud  on  the  part  of  the  vendor's  agent,  might  be  set 
up  as  a  defense. 

*  In  Alabama  it  is  not  necessary  to  prove  t  Taylor  v.  Fleet,  4  Barb.  S.  C.  R.  95. 

that  the  vendor  knew  the  representation  to  be  \  Cnlver  v.  Avery,  7  Wendell,  380. 

false  when  he  made  it.     Monroe  v.  Pritchett,  §  Lysney  v.  Selby,  2  L.  Raym.  1118. 

16  Ala.  785.     But  in  that  State,  where  the  ||  Dobell  v.  Stevens,  3  Barn'.  &  Cres.  623. 

vendee  has  accepted  a  deed  with  covenants  of  \  Early  v.  Garrett  »Sb  Lankester,  9  Barn.  & 

warranty,  neither  fraud  nor  failure  of  consid-  Cres.  928. 

eration  is  a  good  defense  to  a  note  given  for  **  Whitney  v.  Allaire,  supra. 

the  purchase-money.     Patton  v.  England,  15  ft  Sandford  v.  Handy,  23  Wend.  260. 
Ala.  69.     See  in  that  State,  also,  Capshaw  v. 
Fennell,  12  Ala.  780. 

Geo.  438.  Where  one  having  agreed  to  convey  a  certain  tract  of  land,  fraudulently  conveys 
instead  one  of  less  value,  the  measure  of  the  grantee's  damages  in  an  action  for  the  fraud,  is 
the  difference  in  value  between  the  two.     Hahn  v.  Cummings,  3  Iowa,  583. 

1  So  in  an  action  against  a  municipal  corporation  for  misrepresentation  as  to  the  extent  of 
its  rights  in  property  leased  by  it.  Sharp  v.  The  Mayor,  &c.  of  New  York,  40  Barb.  (N.  Y.) 
256.  The  measure  of  damages  in  an  action  for  fi-audulcntly  representing  real  estate  as  unin- 
cumbered, which  was  in  fact  subject  to  a  mortgage,  is  the  amount  of  the  mortgage  and  interest, 
and,  where  the  mortgage  is  foreclosed,  the  costs  of  the  foreclosure.  Haight  v.  Hayt,  19  N.  Y. 
464.  In  such  a  case  the  right  of  action  is  the  same,  though  the  fi-audulent  vendor  refuse  to 
warrant  against  the  incumbrance,  has  no  personal  interest  in  the  property,  and  the  purchaser 
has  notice  of  the  claim  at  the  sale.     Ibid.     And  see  Ward  v.  Wiman,  17  Wend.  193. 

Where  the  vendor  of  a  mill-site  misrepresented  its  situation,  but  the  vendee  elected  to  keep 
the  premises  actually  conveyed,  the  measure  of  damages  was  held  to  be  what  it  would  cost  to 
obtain  by  expeditious  legal  proceedings  the  land  falsely  represented  to  be  covered  by  the  deed. 
Reynolds  v.  Cox,  1 1  Ind.  262. 


CH.    XXII.]  FRAUD    IN    SALE   OF   LANDS.  G57 

The  question  as  to  the  rule  of  damages  in  actions  of  this  kind, 
was  discussed  in  New  York  in  an  action  of  debt  on  Ijond,  given 
for  the  purchase-money  of  land.*'  The  bond  was  dated  in  1836. 
The  action  was  tried  six  years  later.  The  defendant  offered  to 
prove,  that  previous  to  the  execution  of  the  bond,  the  plaintiff 
had  made  various  false  representations  in  regard  to  the  land  in 
question,  namely,  that  he  had  given,  or  was  to  give,  $32,000, 
whereas,  in  truth,  he  paid  but  $16,000  ;  that  it  was  graded,  and 
suitable  for  building  lots,  whereas  it  was  altogether  uneven,  and 
unfitted  for  the  object  in  view;  and  that  the  plaintiff  well 
knew  the  condition  of  the  land,  but  that  the  defendant  was 
ignorant  of  it.  This  evidence,  which  was  offered  as  well  to 
diminish  the  amount  of  recovery,  as  in  bar  of  the  action,  was 
rejected,  and  the  j^laintifi"  had  a  verdict  for  the  amount  claimed. 
Upon  argument,  the  court  held,  that  after  entire  performance 
of  a  contract  of  sale,  the  vendee  retaining  the  prof)erty,  he  could 
not  set  up  fraudulent  representations  of  the  vendor,  in  bar  of 
the  action,  and  that  so  far  the  rejection  of  the  evidence  was  right. 
But  it  was  further  held,  that  under  such  circumstances  the  ven- 
dee could  recoup  the  damages  which  he  had  actually  sustained 
by  the  fraud,  and  that  this  could  be  done  in  an  action  upon  a 
sealed,!  as  well  as  an  unsealed  instrument,  and  whether  it  went 
to  defeat  the  recovery  in  whole  or  in  part.  The  court  went  on 
to  say, — 

"  If  the  jury  shall  find  the  fraud,  the  question  is  then  asked,  how  shall  the  de- 
fendant's damages  be  ascertained?  As  the  land,  whether  the  representations 
were  true  or  false,  was  in  reality  worth  only  a  small  part  of  the  price  which  the 
defendant  agreed  to  pay,  there  may  be  some  difficulty  in  answering  the 
question.  But  it  may,  I  think,  be  solved.  We  must  not  go  back  to  the  r561"| 
date  of  the  contract  for  the  price,  and  then  come  down  to  the  present  day 
for  the  actual  value  of  the  land,  and  charge  the  plaintiff  with  the  difference.  The 
defendant  must  bear  the  consequences  of  the  prevailing  delusion  about  prices  and 
new  towns  under  which  the  purchase  was  made.  On  the  other  hand,  the  plaintiff 
cannot  say  that  his  fraud  has  worked  no  injury,  because  everybody  has  now  found 
out  that  the  land  never  was  worth  anything  for  the  purpose  of  building  a  town  upon 
it.t  The  cause  must,  as  far  as  practicable,  be  tried  just  as  it  would  have  been 
tried  the  day  after  the  contract  was  made,  if  the  question  had  arisen  at  that  time. 
The  jury  must  assume,  what  the  parties  then  believed,  that  the  land  was  valuable 
as  the  site  for  a  town,  and  then  inquire  how  much  less  the  land  was  worth  for 
building  purposes,  taking  the  surface  as  it  actually  existed,  than  it  would  have 
been  worth  for  those  purposes,  had  the  plaintiff's  representation  concerning  the 
surface  been  true.     One  mode  of  arriving  at  the  correct  result,  and  perhaps  the 

*  Van  Eps  v.  Harrison,  5  Hill,  63.  |  See  Smith  v.  Griffith,  3  Hill,  333. 

t  2  Kevised  Statutes,  406,  c.  §  77. 

42 


658  TRESPASS    TO    PERSON    OR    PROPERTY.  [CH.    XXII. 

only  one,  would  be  to  inquire  into  the  probable  expense  of  reducing  and  conform- 
ing the  surface  of  tlie  ground  to  a  condition  corresponding  to  the  plaintiff's  repre- 
sentation. This  would,  I  think,  give  the  correct  rule  of  damages ;  but  in  the  pres- 
ent stage  of  the  cause,  it  is  not  necessary  to  settle  the  question." 

In  a  similar  action  in  New  York,  it  has  been  said  that  the 
fraud  would  have  authorized  the  defendant  to  deliver  up  the 
possession  and  rescind  the  contract ;  but  that  if  he  affirms  the 
contract  and  goes  into  possession,  he  cannot  then  either  recover 
back  the  purchase-money  paid,  or  defeat  a  recovery  of  the  pur- 
chase-money not  j)aid,  as  on  a  total  failure  of  consideration ;  the 
most  he  can  claim  is  to  rely  on  his  action  for  damages  for  the 
fraud,  or  recoup  them  in  an  action  for  the  purchase-money.* 

Fraud  in  Sale.  —  Analogously  to  the  rule  in  Warranties,  the 
Difference  between  the  Real  and  the  Represented  Value  usually 
measures  the  Damage. — We  ought  here  to  notice  an  important 
principle  which  has  been  laid  down  in  cases  of  fraud,  one  wel 
calculated  to  enforce  honesty  and  fair  dealing.  It  has  been  held 
in  Massachusetts,  on  the  sale  of  a  tannery,  that  where  one  is 
deceived  in  the  purchase,  by  the  false  affirmations  of  a  third 
party,  and  thus  pays  more  than  it  is  worth,  the  party  by  whom 
he  was  thus  deceived  cannot  defeat  the  action  by  showing  that, 
the  plaintiff  sold  the  property  for  the  same  sum  which  he  paid 
for  it ;  and  it  was  said  that  the  sum  for  which  the  party  sold 
the  property  is  not  the  rule  by  which  to  measure  the 
[562]  damages,  otherwise  it  might  make  the  question  of  fraud 
depend  upon  the  rise  or  fall  of  the  property  in  the 
market.! 

So,  again,  where  fraud  has  been  practiced  in  a  sale,  as  of  a 
horse,  the  measure  of  damages  is,  as  in  an  action  for  the  breach 
of  warranty,  the  difference  between  the  value  of  the  article  sold 
and  the  value  of  such  an  article  as  it  was  represented  to  be, 
even  if,  at  the  time  of  the  sale,  the  property  was  fairly  worth 
the  23rice  paid.J 

Res  Gestae  in  Trespass.  —  As  we  have  already  seen,  it  is 
competent  in  all  actions  of  this  description,  to  give  in  evidence 
the  circumstances  which  accompany  and  give  character  to  the 
acts  complained  of;§  but  the  nature  of  the  testimony  that  is 
admissible  for  such  purpose  belongs  rather  to   treatises  on  the 

*  Lamerson  v.  Marvin,  8  Barb.  S.  C.  R.  9.         t  Medbuiy  v.  Watson,  6  Metcalf,  246 ;  ap- 
In  Alabama,  as  has  been  said,  fraud  furnishes     proved  in  Cornell  v.  Jackson,  3  Cush.  506. 
no   defense  at  law.     Patton  v.  England,  15        J  Stiles  v.  White,  11  Met.  356. 
Ala.  69.  §  Starkie  on  Evidence,  vol.  2,  part  ii.  1116; 

Trespass,  ante,  555,  et  seq. 


CH.    XXII.]  GENERAL   RULES.  G59 

subject  of  evidence.  It  seems  that  this  rule  is  confined  to  such 
mjuries  as  amount  to  trespasses,  for  the  obvious  reason  that  to 
permit  a  substantive  injury  requiring  a  different  form  of  action 
to  be  alleged  by  way  of  aggravation,  would  be  in  effect  to  con- 
found the  forms  of  action.* 

Matters  in  Aggravation  must  be  alleged  unless  the  Natural 
Result  of  the  Injury.  —  And  the  plaintiff  cannot  give  evidence 
of  any  matters  in  aggravation  not  stated  on  the  record,  although 
they  would  not  have  supported  any  independent  action,  which 
do  not  naturally  and  even  necessarily  result  from  the  injury 
alleged  on  the  record.  Thus,  if  the  declaration  merely  alleges 
a  false  imprisonment,  the  plaintiff  cannot  show  in  aggravation, 
that  he  was  stinted  in  his  food,  or  that  he  caught  an  infectious 
disorder.! 

It  is  manifest  that  in  the  cases  which  we  are  now  considering, 
it  is  difficult,  if  not  impossible,  to  lay  down  any  general  rules. 
But  it  seems  that  the  following  propositions  can  be  maintained. 

The  measure  of  damages  does  not  depend  on  the  form  of  the 
action  ;  and  though  the  proceeding  be  in  tort,  if  no  circumstances 
of  aggravation  be  shown,  the  relief  is  restricted  to  the  line  of 
legal  compensation. 

Even  if  circumstances  of  aggravation  are  made  to 
appear,  the  court  will  look  into  the  evidence  admitted  [563] 
and  the  charge  delivered ;  and  if  it  be  shown  that  testi- 
mony has  been  received  or  instructions  given,  which,  if  the  pur- 
pose of  the  jury  were  to  give  compensatory  damages,  would 
have  been  wrong,  the  verdict  will  not  be  allowed  to  stand  :  in 
other  words,  the  presumption  in  ordinary  cases  is,  that  the  jury 
intended  to  award  compensation  only,  and  not  to  inflict  punish- 
ment; and  if  compensation  be  the  object,  it  must  be  regulated 
by  legal  principles. 

Cases  allowing  Compensation  beyond  the  Direct  Injury. — 
There  is  a  class  of  cases,  however,  ranging  between  those  where 
vindictive  damages  are  claimed,  and  those  in  which  trespass 
unattended  by  any  evil  motive  is  complained  of.  In  these 
cases,  where  there  is  clear  misconduct  on  the  part  of  the 
defendant,  yet  not  so  gross  as  to  permit  exemplary  damages, 
the  courts  show  a  disposition  to  extend  the  limit  of  relief,  and 
carry  remuneration  beyond  what  they  would  do  in  cases  of 
contract,  or  of  trespass  without  fault.     But  this  branch  of  our 

*  Starkie,  ubi  supra.  t  Starkie,  ubi  supra ;  Lowden  v.  Goodrich, 

Peake's  C.  46  ;  Pettit  v.  Addington,  Ibid.  62. 


660  TRESPASS   TO    PERSON   OR   PROPERTY.  [CH.    XXII. 

subject  is  still  far  from  being  reduced  to  clear  and  definite 
boundaries.*^ 

*  Sec  ante,  79,  et  seq.,  88,  112,  et  seq. 

1  The  damages  for  the  actual  injury  sustained  in  cases  of  pure  tort,  are  not  to  be  always 
computed  by  tlic  rule  applica])lc  to  contracts,  although  the  case  is  not  one  for  vindictive  dam- 
ages. Those  rules  should  be  followed,  as  far  as  they  are  pertinent,  where  elements  of  certainty 
exist  bv  which  substantial  compensation  may  be  estimated.  But  where  such  elements  are  not 
to  l>c  fouud,  or  where  the  rule  api)lioalile  to  l)reachcs  of  contract  would  exclude  a  material  part 
of  the  damages  sustained,  in  such  case  ail  the  tacts  tending  to  show  damages,  or  their  jn'obable 
amount,  may  go  to  the  jury,  so  that  they,  under  instructions  from  the  court  guarding  them 
against  merely  possible  or  too  remote  danuiges,  can  make  the  most  intelligible  and  probable 
estimate  which  the  case  will  permit. 

Thus,  where  by  the  defendant's  trespass  the  plaintiff  was  deprived  for  the  remainder  of  his 
term  of  the  premises  leased  by  him,  he  was  not  limited  in  his  recovery  to  the  market  value  of 
the  remaiuder  of  the  term,  or  the  diflference  between  the  rent  he  was  paying  and  the  fair  rental 
value  of  the  premises,  if  the  premises  had  a  greater  and  especial  value  to  him  as  a  stand  for 
his  business.  He  was  entitled  to  compensation  for  the  loss  to  his  business  on  a  removal  to 
another  place  necessitated  by  the  trespass.     Allison  v.  Chandler,  11  Mich.  542. 

But,  as  we  have  before  stated  (ante,  115,  note  1),  we  think  all  rules,  or  rather  definite  prin- 
ciples of  damages  in  civil  actions,  must  be  referred  either  to  compensation  or  punishment, 
although  cases  sometimes  occur  where  the  jury  may  consider  injurious  consequences  to  the 
defendant,  which,  on  the  principles  controlling  compensation,  would  generally  be  too  remote, 
and,  as  punishment,  would  bear  no  necessary  proportion  to  the  degree  of  the  oflfense. 


CHAPTER  XXni. 

THE   RULE   OF   DAMAGES   UNDER   STATUTES. 

General  Principle  upon  which  Damages  are  granted  by  Statute.  —  Damages  for 
taking  Private  Property  for  Public  Use  ;  in  England ;  in  this  Country.  — When 
and  how  Compensation  made.  —  Damages  in  Actions  against  Towns.  —  Stat- 
utes for  attendance  of  Witnesses.  —  Roads  and  Bridges.  —  Damages  for  In- 
juries done  by  Animals.  —  Statutes  imposing  Penalties.  —  Damages  for  Deten- 
tion. —  Double  and  Treble  Damages.  —  Interest.  —  Flowing  Lands.  —  Claims 
against  Officials ;  Special  Cases.  —  Patent  Cases. 

M-\NY  interesting  questions  on  the  subject  of  damages  arise 
under  particular  statutes.*  There  is  a  large  class  of  cases 
where  a  statute,  while  directing  or  prohibiting  some  particular 
act,  omits  to  annex  any  penalty,  or  to  prescribe  any  measure 
of  damages.  In  these  cases  the  party  aggrieved  by  the  forbid- 
den act  or  omission,  has  his  remedy  at  law.  "  The  neglect  of 
a  compulsory  statute  which  annexes  no  penalty  to  the  trans- 
gression, will  found  an  action  at  common  law  to  those  who 
have  interest,  ordaining  the  defendant  either  to  do  what  the 
statute  requires  or  to  pay  damages."  f  The  damages  in  such 
case  are  entirely  at  large.  In  reference  to  acts  of  this  kind,  the 
Court  of  Exchequer  in  England  recently  held  this  language : 
"Where  a  statute  prohibits  the  doing  of  a  particular  action 
affecting  the  public,  no  person  has  a  right  of  action  against 
another  merely  because  he  has  done  the  prohibited  act.  It  is 
incumbent  on  the  part  of  the  comj)lainant  to  allege  and  prove 
that  the  doing  of  the  act  prohibited  has  caused  him  some  spe- 
cial damage,  some  peculiar  injury  beyond  that  which  he  may 
be  supposed  to  have  sustained  in  common  with  the  rest  of  the 
queen's  subjects  by  an  infringement  of  the  law.  But  when 
the  act  prohibited  is  obviously  prohibited  for  the  protection 
of  a  particular  party,  then  it  is  not  necessary  to  allege  special 
damage."  t 

*  I  may  be  permitted  here,  on  the  suliject  t  Lord  Kaims,  Prin.  of  Eq.  book  i.  part  i. 

of  statutes,  to  refer  fjenerally  to  a  treatise  on  ch.  v.  p.  179. 

Statutory   and   Constitutional    Law,    by    the  J  Chamberlaine  v.  Chester  &  B.  R.  Co.  1 

author  of  this  work.  Exch.  R.  870. 


662  DAMAGES   UNDER    STATUTES.  [CH.    XXIII. 

There  is  another  dass  of  cases  where  the  legislature, 
[565]  following  out  the  idea  of  the  Aquilian  law,*  has  endeav- 
ored to  put  a  stop  to  all  inquiry  into  the  actual  damages 
by  fixing  an  arbitrary  sum  as  the  measure  of  relief  There  are 
others  where,  in  order  to  punish  some  particular  act,  it  gives 
double  and  treble  damages.  ^ 

Appropriation  of  Private  Property  to  the  Public  Use. — 
There  is  perhaps,  however,  no  class  of  questions  belonging  to 
this  branch  of  our  subject  so  important  as  those  which  grow  out 
of  the  statutes  under  which  public  works  of  various  kinds  are 
carried  on,  and  by  which  compensation  is  provided  for  injury 
that  may  be  sustained  by  private  proprietors  in  the  prosecution 
of  the  work.  The  right  of  the  government  to  take  private 
property  for  public  use  is  one  of  vast  importance,  and  the  power 
one  of  indispensable  necessity ;  but  great  care  is  required,  so  to 
exercise  the  power  that  individuals  shall  not  be  sacrificed  to 
the  community.  Keeping  this  general  principle  in  view,  we 
proceed  to  examine  some  of  the  cases  growing  out  of  the  stat- 
utes founded  on  what  is  called  the  Right  of  Eminent  Domain.^ 

*  Ante,  25. 

• 

1  See,  as  to  the  application  and  object  of  this  provision  in  the  Patent  Law  of  the  United 
States,  post,  573,  note. 

2  As  it  is  not  within  the  scope  of  this  work  to  discuss  in  detail  the  principles  on  which  dam- 
ages occasioned  by  public  improvements  are  assessed,  depending  as  they  do  chiefly  upon  special 
and  local  statutes,  the  inquirer  is  referred  to  the  works  on  that  subject :  as  the  author's  treatise 
on  Statutory  and  Constitutional  Law,  Redfield  on  Railways,  and  Pierce  on  American  Railway 
Law.  In  general,  it  may  be  said  that  the  rule  by  which  damages  are  assessed  for  land  appro- 
priated in  the  construction  of  a  railroad  or  other  public  work  is  the  market  value  of  the  land 
taken,  in  addition  to  which  allowance  is  made  for  special  injury  to  the  remaining  estate,  by  the 
manner  in  which  it  may  be  cut,  unless  such  injnry  is  compensated  by  the  projected  public 
improvement.  But  no  deduction  is  to  be  made  from  the  land-owner's  damages  on  account  of 
general  advantage  from  the  improvement  in  which  he  participates.  On  the  other  hand,  no 
damages  are  allowed  for  the  reason  that  when  the  owner,  at  a  future  day,  comes  to  improve 
his  land,  he  must  be  put  to  extraordinary  expense  in  adapting  his  improvements  to  the  public 
road.  Nor  is  he  entitled  to  damages  on  the  ground  that  the  deprivation  of  his  land  prevents 
his  resisting  tlie  approaches  and  encroachments  of  society.  Individual  property  is  exclusive 
as  against  inaividuals  only.  As  regards  society,  it  exists  concurrently  with  public  right  and 
the  right  of  eminent  domain.  Nor  in  general  is  he  entitled  to  consequential  damages  to  lands 
not  taken,  unless  such  damages  are  provided  for  by  the  legislative  authority  under  which  the 
improvement  is  made-  Where  the  damages  are  ascertained  by  an  appi'aisement,  it  should 
include  compensation  for  all  the  prospective  loss  or  injury  to  which  the  owner  will  be  entitled 
by  the  proper  construction  and  operation  of  the  road,  and  in  case  of  a  subsequent  alteration 
of  a  highway  he  will  not  be  entitled  to  additional  damages.  See  Dearborn  v.  The  Boston,  C. 
&  M.  R.  R.  Co.  4  Fost.  (N.  H.)  179;  Mt.  Washington  R.  Co.'s  Petition,  35  N.  H.  134; 
Concord  Railroad  v.  Greeley,  23  N.  H.  237  ;  Carpenter  v.  Landaff,  42  N.  H.  218  ;  Deaton  v. 
The  County  of  Polk,  9  Iowa,  594 ;  The  East  Penn.  R.  R.  Co.  v.  Hottenstine,  47  Pcnn.  28 ; 
Scarle  v.  The  Lackawanna  and  Bloomsburg  R.  R.  Co.  33  Penn.  57  ;  Patten  v.  The  Northern 
Cent.  R.  R.  Co.  33  Penn.  426  ;  Doi-lan  v.  The  East  Brandywine  and  Waynesburg  R.  R.  Co. 
46  Penn.  520  ;  Town  of  Lambertville  v.  Clevinger,  1  Vrooni  (N.  J.),  53  ;  Robinson  v.  Robin- 
son, 1  Duval  (Ky.),  162;  Hatch  v.  Vermont  Centi  Railway,  25  Vt.  49;  Winona  and  St. 
Peter  R.  R.  Co.  v.  Waldron,  11  Minn.  515. 

Where  the  legislature  constitutionally  authorizes  an  act  the  necessary  consequence  of  which 
is  an  injury  to  ])n)perty,  and  prescribes  the  mode  of  compensation,  giving  the  injured  party 
the  power  to  avail  himself  of  it,  such  statutory  remedy  is  exclusive.     Fuller  v.  Edings,  11  S. 


CH.  xxiil]  right  of  eminent  domain.  663 

English  Statutes  and  Decisions.  —  An  English  stutute  de- 
clares that  a  railway  company  shall  make  full  compensation  for 
all  damages  sustained  by  any  parties  by  reason  of  the  exercise 

C.  L.  R.  (Kich.)  239  ;  The  Little  Miami  R.  R.  Co.  v.  Whitacre,  8  Ohio  St.  .OOO.  Rut 
althoui:)!  a  c<)r])oratioii  claim  to  have  taken  private  property  in  jjiirsnance  of  a  statute,  yet  if 
in  fact  the  act  was  not  authorized  by  the  statute,  it  stands  in  the  position  of  any  otlier  wrong- 
doer, an<l  is  liable  in  the  ordinary  form  of  action.  Cortes  v.  The  City  of  I)aveui)ort,  9  Iowa, 
227,  where  the  law  is  reviewed;  Freeland  v.  The  City  of  Muscatine,  9  Iowa,  4()1  ;  Beyer  v. 
Tanner,  :i9  111.  135.  And  in  such  a  case,  where  the  act  complained  of  is  the  destruction  of  a 
building,  the  measure  of  damages  is  not  the  cost  of  putting  a  new  building  in  the  jilace  of  an 
old  one,  but  of  replacing  the  original  building  in  its  former  condition,  making  allowance  to 
the  jilaintitf  for  the  deprivation  of  the  use  of  his  property  necessarily  and  immediately  caused 
by  the  defendant's  act.     Ibid. 

'  The  measure  of  damages  to  land  by  the  opening  of  a  highway  or  railway  through  it,  is  the 
ditlercnce  between  its  market  value  with  and  without  the  improvement.  Troy  &  Bost.  R.  R. 
Co.  V.  Lee,  13  Barb.  169  ;  Sidener  v.  Essex,  22  Ind.  201  ;  Hornstein  v.  Atlantic  &  Gt.  West- 
ern R.  R.  Co.  51  Penn.  St.  87.  So  in  an  action  for  consequential  damages  for  injuries  to  land 
from  the  opening  of  a  railroad,  where  under  the  law  the  action  can  be  maintained,  the  measure 
of  dam.ages  is  the  difference  between  what  the  whole  property  would  have  sold  for,  unaffected 
by  the  railroad,  and  what  it  would  have  sold  for  as  affected  by  it.  Watson  v.  The  Pittsburgh 
and  Connellsville  R.  R.  Co.  37  Penn.  469;  Schuylkill  Nav.  Co.  v.  Thorburn,  7  S.  &  R.  411. 
But  it  is  held  in  Kentucky,  that  the  provision  of  the  constitution  which  secures  to  the  owner 
the  just  value-of  his  projj'erty  before  he  can  be  deprived  of  it,  is  not  satisfied  by  giving  him 
its  fair  market  value.  He  is  entitled  to  its  actual  value  to  him  under  the  circumstances  which 
exist,  ami  as  the  owner  of  adjacent  property,  if  such  is  the  fact.  Robb  i'.  Maysville  and  Mt. 
S.  Turnpike  R.  Co.  3  Mete.  (Ky.)  117. 

In  the  multi]>licity  of  decisions,  conflicting  rules  are  sometimes  adopted  in  different  jurisdic- 
tions. Thus  in  Missouri,  it  is  held  that  the  use  of  a  town  street,  not  amounting  to  an  exclu- 
sive occupation,  by  a  railway  under  its  charter,  is  not  a  perversion  of  a  highway  from  its 
original  purposes,  and  that  the  damage  to  the  owners  of  the  real  estate  on  the  line  of  the 
street,  whose  access  to  their  lots  is  not  affected,  is  damnum  absque  injuria.  Porter  v.  The  North 
Missouri  R.  R.  Co.  33  Missouri,  128.  So  in  Indiana,  New  Albany  &  Salem  Railway  Co.  v. 
O'Daily,  12  Ind.  551.  In  New  York,  on  the  contrary,  it  is  held  that  the  construction  of  the 
railway  imposes  an  additional  burden  on  the  owner,  not  contemplated  in  the  original  dedica- 
tion oV  his  land  to  the  uses  of  a  highway,  which  requires  compensation.  Williams  v.  The 
New  York  Central  R.  R.  Co.  16  N.  Y.  97  ;  Craig  v.  Rochester  City  and  Br.  Railway  Co.  39 
Barb.  494  ;  Wager  v.  Trov  Union  R.  R.  Co.  25  N.  Y.  526  ;  Carpenter  v.  Oswego  and  Syra- 
cuse R.  R.  Co.  24  N.  Y.  655  ;  Mahon  v.  The  N.  Y.  Cent.  R.  R.  Co.  Ibid.  658.  The  rule  in 
New  York  is  otherwise,  however,  where  the  fee  of  a  city  street  has  been  acquired  by  the  city 
under  a  previous  exercise  of  the  right  of  eminent  domain,  and  is  held  by  it  in  trust  for  the 
public  use  of  the  people  of  the  State.  The  People  v.  Kerr,  27  N.  Y.  188.  liut  further  inquiry 
into  the  subordinate  and  conflicting  rules  on  this  subject  would  carry  us  beyond  the  scope  of 
this  treatise.  The  following  authorities  illustrating  the  general  topic,  were  chiefly  cited  in  a 
note  to  the  last  edition  :  — 

Maine.  Mason  v.  Kennebec  &  Portland  R.  R.  Co.  31  Me.  215  ;  Kimball  v.  Same,  35  Ibid. 
255. 

New-  Hampshire.  Aldrich  v.  The  Cheshire  R.  R.  Co.  1  Foster,  359  ;  Shattock  v.  The 
Wilton  Railroad,  3  Ibid.  269;  Dearborn  v.  The  Boston,  &c.  Railroad,  4  Ibid.  179  ;  Cate  v. 
Nutler,  Ibid.  108  ;  The  Northern  R.  R.  Co.  v.  The  Concord  &  Claremont  R.  R.  7  Ibid.  183. 
As  to  bridges.  The  State  v.  Canterbury,  8  Post.  195;  Same  v.  Boscawen,  Ibid.  195.  As  to 
highwavs,  etc.,  Brown  v.  Rundlet,  15  N.  H.  360  ;  Baker  v.  Shephard,  4  Post.  208;  Thurston 
V.  Alstc'ad,  6  Ibid.  259;  Parmer  v.  Hooksett,  8  Ibid.  244  ;  Clark  v.  Hampstead,  19  N.  H.  365. 

Vermont.  Haswell  i'.  The  Vermont  Central  R.  R.  Co.  23  Vt.  228  ;  Hatch  v.  The  Same, 
25  Ibid.  49 ;  The  State  v.  Vernon,  Ibid.  244 ;  Sabin  v.  The  Vermont  Central  R.  R.  Co.  Ibid. 
363  ;  Richardson  v.  The  Same,  Ibid.  465  ;  Courser  i-.  The  Same,  Ibid.  476  ;  Stacey  v.  The 
Same,  1  Williams,  39  ;  Butman  v.  The  Same,  Ibid.  500.  As  to  highways,  Dalrymple  v. 
Whitintrham,  26  Vt.  345. 

RLvssAonrsETTS.  Field  v.  The  Vermont  &  Massachusetts  R.  R.  Co.  4  Cush.  150  ;  Boynton 
V.  Peterborouii:h  &  Shirlev  R.  R.  Co.  Ibid.  467 ;  White  v.  The  South  Shore  R.  R.  6  Ibid.  412 ; 
Chapin  v.  The  Boston  &  Providence  R.  R.  Ibid.  422;  Gardiner  v.  The  Boston  &  Worcester  R. 
R.  Co.  9  Ibid.  1.  As  to  canals.  Chase  v.  Sutton  Manufacturing  Co.  4  Cush.  152.  As  to 
highways,  etc.,  Crockett  v.  The  City  of  Boston,  5  Ibid.  182;  Monagle  v.  The  Co.  Commis- 
sioners of  Bristol,  8  Ibid.  360  ;  Damon  v.  Reading,  2  Gray,  274.  As  to  sidewalks.  The  City 
of  Lowell  i;.  French,  6  Cush.  223.  As  to  allowance  for  benefit,  Meacham  v.  Fitchburg  R.  R. 
4  Cush.  291  ;  Upton  v.  The  South  Reading  Branch  R.  R.  Co.  8  Ibid.  600.    As  to  admission 


664  DAMAGES    UNDER    STATUTES.  [CH.    XXIII. 

of  the  powers  of  the  company ;  and  it  also  prescribes  the  mode 
of  ascertaining  the  amount  of  compensation  where  any  party 
shall  have  been  injuriously  affected  by  the  work,  and  for  which 

of  evidence,  White  v.  Fitchburg  II.  R.  4  Cush.  440.  For  further  late  decisions  in  Massachu- 
setts, see  pout,  568,  note. 

Rhode  Island.     As  to  highways,  Rounds  i'.  Mnmford,  2  R.  I.  154. 

Connecticut.  Nicholson  y.  The  New  York  &  New  Haven  R.  R.  Co.  22  Conn.  74.  As  to 
highways,  Clark  v.  The  Town  of  Saybrook,  21  Conn.  313.  Assessments  of  benefits,  Nichols 
V.  BridgeiJort,  23  Ibid.  189. 

New  YoijK.  Polly  v.  The  Saratoga  &  Washington  R.  R.  Co.  9  Barb.  449 ;  Wheeler  v. 
The  Rochester  &  Syracuse  R.  R.  Co.  12  Ibid.  227;  Gould  v.  The  Hudson  River  R.  R.  Co. 
Ibid.  616 ;  The  Troy  &  Boston  R.  R.  Co.  r.  Lee,  13  Ibid.  169 ;  Hentz  v.  The  Long  Island  R. 
R.  Co.  Ibid.  646  ;  Furniss  v.  The  Hudson  River  R.  R.  Co.  5  Sandf.  551  ;  Hill  v.  The  Mohawk 
&  Hudson  R.  R.  Co.  3  Seld.  152  ;  All)anv  N.  Railroad  Co.  v.  Lansing,  16  Barb.  68;  Canan- 
daigua  &  Niagara  R.  R.  Co.  v.  Payne,  Ibid.  273 ;  Cruger  v.  The  Hudson  River  R.  R.  Co.  2 
Kern.  190.  As  to  canals,  Newell  v.  The  People,  3  Seld.  9  ;  Barney  v.  The  City  of  Buffalo,  15 
Barb.  457  ;  Rexford  v.  Knight,  Ibid.  627  ;  S.  C.  1  Kern.  308  ;  The  People  v.  Schoonmaker,  3 
Ibid.  238  ;  Griffith  v.  Follett,  20  Barb.  620.  As  to  bridges,  Hill  v.  Supervisors  of  Livingston 
County,  2  Kern.  52.  As  to  highways,  etc..  Plant  u.  The  Long  Island  R  R.  Co.  10  Barb.  26 ; 
Chapman  v.  The  Albany  &  Schenectady  R.  R.  Co.  Ibid.  360;  Manice>.  The  Mayor,  &c.  of 
New  York,  4  Sold.  120.  In  the  matter  of  widening  Wall  Street,  17  Barb.  617  ;  Clark  ;;.  The 
City  of  Utica,  18  Ibid.  451.  As  to  riparian  proprietors.  Brown  v.  The  Cayuga  &  Susque- 
hanna R.  R.  Co.  2  Kern.  486.  As  to  admission  of  evidence,  Troy  &  Boston  R.  R.  Co.  v. 
Northern  Turnpike,  16  Barb.  100.  As  to  set-off  of  benefit,  Betts  v.  The  City  of  Williams- 
burgh,  15  Barb.  255. 

New  Jersey.  Somerville  &  Easton  R.  R.  Co.  v.  Doughty,  2  Zabr.  495  ;  Coster  v.  New 
Jersey  R.  R.  Co.  3  Zabr.  227 :  The  Same  v.  The  Same,  4  Ibid.  730 ;  Starr  v.  The  Camden  R. 
R.  Co.  Ibid.  592.  As  to  canals.  Den  v.  The  Morris  Canal  Co.  4  Zabr.  587.  As  to  highways, 
etc.,  Perrine  v.  Farr,  2  Zabr.  356  ;  The  State  v.  Dean,  3  Zabr.  335  ;  Same  v.  Cooper,  Ibid.  381 ; 
Same  v.  Miller,  U)id.  383  ;  Readington  v.  Dilley,  4  Ibid.  209.  Assessment  of  benefits,  The 
State  V.  Jersey  City,  Ibid.  662. 

Pennsylvania.  Ohio  &  Pennsylvania  R.  R.  Co.  v.  Bradford,  19  Penn.  363  ;  Railroad  v. 
Gesner,  20  Ibid.  240;  Reitenbaugh  v.  The  Chester  Valley  R.  R.  Co.  21  Ibid.  100;  Pennsyl- 
vania R.  R.  Co.  V.  Keifter,  22  Ibid.  356 ;  Zack  v.  Penn.  R.  R.  Co.  25  Ibid.  394 ;  O'Hara  v.  The 
Same,  Ibid.  445 ;  The  North  Penn.  R.  R.  Co.  v.  Davis,  26  Ibid.  238 ;  Snyder  v.  Penn.  R.  R. 
Co.  55  Penn.  340  ;  Western  Penn.  R.  R.  Co.  v.  Hill,  56  Penn.  460.  As  to  canals,  Ligat  v.  The 
Commonwealth,  19  Penn.  St.  456.  As  to  joint  owners,  Pittsburgh  &  S.  Railroad  Co.  v.  HaU, 
25  Ibid.  336. 

Maryland.  Hamilton  v.  Annapolis  &  Elk  Ridge  R.  R.  Co.  1  Md.  Ch.  Decis.  107.  As  to 
canals.  Harness  v.  Chesapeake  &  Ohio  Canal  Co.  Ibid.  248 ;  Douglass  v.  Boonsborough  Tump. 
R.  Co.  22  Md.  219. 

South  Carolina.  Greenville  &  Columbia  R.  R.  Co.  v.  Nunnamaker,  4  Rich.  107  ;  M'Laugh- 
lin  V.  The  Charlotte  &  Co.  Car.  R.  R.  Co.  5  Ibid.  583 ;  White  v.  The  Same,  6  Ibid.  47  ;  North 
Eastern  R.  Co.  v.  Sineath,  8  Ibid.  185.  As  to  allowance  for  benefit,  Greenville  &  Columbia  R. 
R.  Co.  V.  Partlow,  5  Rich.  428. 

Georgia.    As  to  bridges,  Young  v.  HaiTison,  17  Geo.  30. 

Alabama.  As  to  admission  of  evidence.  The  Montgomery  &  West  Point  R.  R.  Co.  v.  Varner, 
19  Ala.  185. 

Tennessee.  Nashville  &  Chattanooga  R.  R.  v.  Cowardin,  11  Humph.  348  ;  Hord  v.  The 
NashvUle,  &c.  R.  R.  Co.  2  Swan,  497. 

Kentucky.     Wolfe  v.  The  Covington  &  Lexington  R.  R.  Co.  15  B.  Monr.  404. 

Illinois.  A.  &  S.  Railroad  Co.  v.  Carpenter,  14  111.  190.  As  to  fences  and  cattle-guards, 
A.  &  S.  Railroad  Co.  v.  Baugh,  14  111.  211.  As  to  highways,  &c..  Canal  Trustees  v.  The  City 
of  Chicago,  12  Ibid.  403  ;  County  of  Sangamon  v.  Brown,  13  Ibid.  207. 

Indiana.  No  deduction  for  benefit,  IM'Mahon  v.  The  Cincinnati,  &c.  R.  R.  Co.  5  Ind.  413 ; 
The  Newcastle,  &c.  R.  R.  Co.  v.  Brumback,  Ibid.  543. 

Ohio.  Little  Miami  R.  R.  v.  Naylor,  2  Ohio  (N.  S.)  235.  As  to  bridges,  Fulton  Co.  v. 
Lucas  Co.  Ibid.  508. 

Michigan.  Draper  v.  Williams,  2  Mich.  536  ;  The  People  v.  The  Mich.  Southern  Railroad, 
3  Ibid.  496.  As  to  interest.  The  People  v.  La  Grange,  2  Ibid.  187.  As  to  highways.  The 
People  V.  Township  Board  of  Scio.  3  Ibid.  121. 

Wisconsin.     The  Milwaukee  &  Mississippi  R.  R.  Co.  v.  Eble,  4  Chand.  72. 

District  of  Columbia.  Chesapeake  and  Ohio  Canal  Co.  v.  The  Union  Bank  of  George- 
town, 4  Cranch  C.  C.  R.  75. 

English  Decisions.  The  Marquis  of  Salisbury  v.  The  Great  Northern  Railway  Co.  10 
Eng  L.  &  E.  344  ;  Regina  v.  The  Leeds,  &c.  Railway  Co.  11   Ibid.  484;  The  Lancashire  and 


CH.    XXIII.]  RIGHT    OF   EMINENT    DOMAIN.  665 

they  sliiill  not  have  received  satisfaction.*  Under  this  act  it 
has  been  held  that  where  the  proximity  of  a  railway  crossing  a 
private  road  diminished  the  value  of  the  property  (and  Lord 
Campbell,  C.  J.,  intimated  that  the  mere  passage  of  the  trains 
close  to  the  house  would  have  the  same  legal  eftect),  it  was 
held  to  ffive  a  rio-ht  to  redress ;  and  the  court  said,  "  The  com- 
pany  have  done  and  do  that  which  would  be  an  actionable  in- 
jury unless  done  under  the  powers  conferred  by  the  act ;  and 
that  is  a  very  fair  criterion  to  see  if  lands  are  injuriously  affect- 
ed within  the  statute."  f 

English  Statutes  and  Cases.  —  In  England,  by  the  Land 
Clauses  Consolidation  Act,  8  Vict.  c.  18,  compensation  is  given 
for  any  lands,  or  "  any  interest  therein,  which  shall  have  been 
taken  for  or  injuriously  affected  by  the  execution  of  the  work." 
And  under  this  statute,  damage  done  by  dirt  and  dust  and  the 
obstruction  of  customers,  is  a  subject  of  remuneration.t  Under 
this  statute,  also,  the  damages  must  be  paid  before  entry.  § 

Where  a  dock  company  authorized  to  take  lands  were  to 
make  "compensation  for  the  damage  occasioned  to  any  such 
land  by  the  execution  of  the  works,"  it  was  held  that  this  lan- 
guage would  include  compensation  to  a  land-owner  parting 
with  his  premises,  for  loss  which  he  would  sustain  by  having  to 
give  up  his  business  as  a  brewer  until  he  could  obtain  other 
suitable  premises  for  carrying  it  on.|j 

Li  the  case  of  an  arbitration  to  recover  compensation  for 
damage  occasioned  to  the  lands,  mines,  minerals,  and  works  of 
the  plaintiffs,  under  stat.  29  Geo.  III.  c.  74,  there  was  no  pro- 
vision in  the  submission  in  regard  to  the  measure  of  damages. 
The  arbitrators  made  an  allowance  for  the  capital  and  interest 
invested  in  working  the  coal  field ;  and,  on  motion,  the  Court 
of  King's  Bench  held  this  right.^ 

American  Constitutions  and  Decisions.  —  What  is  Just  [5G6] 
Compensation.  —  In  this  country,  our  State  constitutions 
generally  recognize  and  declare  the  right  of  eminent  domain, 

*  8  &  9  Vict.  c.  20,  §  6.  §  Ramsden  v.  Manchester  R.  Co.  1  Exch. 

t  Glover   V.  N.  Staffordshire   Railway   Co.  723. 

15  Jur.  673.  II  Jubb  v.  Hull  Dock  Co.  9  Q.  B.  443. 

I  East  and  W.  I.  Docks  v.  Gattke,  15  Jur.  H  In  re  Wright  tt  al.  v.  Cromford  Canal  Co. 

261.  1  Queen's  Bench,  98. 


Yorkshire  R.  R.  Co.  v.  Evans,  19  Ibid.  295;  Rcgina  v.  The  London  &  Northwestern  Railway 
Co.  25  Ibid.  37  ;  Rinchin  v.  The  London  &  Blackwall  Railway  Co.  31  Ibid.  249  ;  Bylcs  r. 
Ipswich  Dock  Commissioners,  33  Ibid.  455.  As  to  bridges,  Regina  v.  The  Inhabitants  of 
Southampton,  14  Eug.  L.  &  E.  116  ;  Lister  v.  Lobley,  7  Ad.  &  E.  124. 


666  DAMAGES    UNDER    STATUTES.  [CH.    XXIII. 

on  which  these  statutes  are  founded  ;  but  they  are  also  drawn 
so  as  carefully  to  protect  individual  property,  and  their  lan- 
guage usually  is,  that  private  property  shall  not  be  taken  for 
23ublic  use  without  ^^jiist  compensaiionr  In  construing  this 
phrase,  the  general  principle  running  throughout  the  cases 
seems  to  be,  that  a  just  compensation  to  the  owner  for  taking 
his  property  for  public  use  without  his  consent,  means  the 
actual  value  of  the  property  in  money,  without  any  deduction 
for  estimated  jDrofit  or  advantages  accruing  to  the  owner  from 
the  public  use  of  his  property.  Speculative  advantages  or  dis- 
advantages, independent  of  the  intrinsic  value  of  the  property 
from  the  improvement,  are  a  matter  of  set-off  against  each 
other,  and  do  not  affect  the  dry  claim  for  the  intrinsic  value  of 
the  property  taken.*  ^  It  has  been  declared  in  New  York,  in 
relation  to  railroads  running  through  cities,  that  the  prohibition 
of  tlie  constitution  is  against  taking  private  property,  not  against 
injuries  to  property,  and  that  contingent  future  damages  or  in- 
cidental and  consequential  injuries  of  indefinite  amount,  not 
cajDable  of  estimate,  do  not  fall  within  the  statute.^  So  when  it 
is  alleged  that  private  property  in  the  neighborhood  of  a  rail- 
way will  be  injured  by  its  vicinity,  the  claim  is  inadmissible.! 
The  same  doctrine  has  also  been  applied  to  the  grading  of 
streets  and  highways,  and  it  has  been  held  that  injury  resulting 
from  grading  and  leveling  a  street,  either  by  cutting  down  or 
filling  up  so  as  to  make  the  street  either  below  or  above  the 
natural  level  of  the  adjacent  land,  is  damnum  absque  injuria,  for 
which  no  compensation  can  be  had.^  In  the  principal  case  it 
was  found  thus,  though  the  ^Droperty  had  suffered  damage, 
there  was  no  precedent  for  saying  that  it  had  been  "  taken  for 
public  use  "  within  the  meaning  of  the  constitution,  and  it  was 
declared  "  that  the  case  seemed  to  fall  within  the  principle  that 
a  man  may  enjoy  his  land  in  the  way  such  property  is  usually 
enjoyed  without  being  answerable  for  the   indirect  or  conse- 

*  Jacob  V.  City  of  Louisville,  9  Dana  Rep.         t  Drake  v.  Hudson  R.  R.  Co.  7  Barb.  508. 
114  ;  Kent's  Commentaries,  vol.  .ii.  p.  339,  in 
notes,  where  many  cases  are  collected. 

1  Vide  supra,  575,  note.  But  under  an  act  of  the  legislature  of  South  Carolina,  which  re- 
quired an  assessment  to  be  made  "  for  the  value  of  the  premises  taken  for  the  pul)lic  use,  as  well 
as  for  damages  generally  to  the  same,"  it  was  held,  that  the  owner  of  a  private  wharf  taken  for 
the  public  use  was  entitled,  besides  the  market  value  of  the  land  taken,  to  the  expenses  neces- 
sarily occasioned  him  by  the  improvement,  such  as  the  cost  of  additional  fencing,  and  compen- 
sation for  carting  mud  across  the  road,  but  not  the  loss  of  customs  and  tolls  from  the  destruc- 
tion of  his  landing.  Eddings  v.  Seabrook,  12  S.  C.  (Rich.)  504;  Fuller  v.  Eddings,  11  S.  C. 
(Rich.)  239. 

2  So  in  Pennsylvania.  Pottstown  Gas  Co.  v.  Murphy,  39  Penn.  257  ;  Buckwaltcr  v.  Black- 
rock  Bridge  Co.  38  Penn.  281. 

^  So  in  Macy  v.  The  City  of  Indianapolis,  17  Ind.  267. 


CH.    XXIII.]  RIGHT    OF    EMINENT    DOMAIN.  667 

queiitial  damages  Avliicli  may  be  sustained  by  an  adjoining 
land-owner."*  I  think  it  will  be  found  that  more  care  is  taken 
of  the  rights  and  interests  of  the  proprietor  under  the  English 
statutes,  tlian  in  this  country. 

Time  and  Mode  of  Compensation. —  Much  discussion  has  also 
been  made  as  to  whether  the  compensation  in  these  cases  is  to 
be  made  concurrently  with  taking  the  land,  or  what  results  are 
to  follow  where  a  concurrent  remedy  is  not  provided  in  the  act 
authorizing  the  land  to  be  taken.f^ 

In  New  York  it  is  well  settled,  that  where  an  act  authorizing 
the  taking  of  private  property  for  public  purposes  provides  for 
a  just  compensation  to  the  owner,  it  is  sufficient  that  the  act 
makes  provision  for  future  compensation.  The  assessment  and 
payment  of  damages  need  not  precede  the  entry  and  oc- 
cupation.t^  In  regard  to  the  constitutional  provision  [5G7] 
securing  trial  by  jury,  it  has  been  decided  in  New  York 
that  a  legislative  enactment  for  the  ascertainment  of  railroad 
damages  by  a  committee  is  not  unconstitutional.§  ^  So  in  regard 
to  the  final  decision  of  the  County  Court  in  Vermont. || 

In  Indiana,  an  act  was  passed  in  1836,  providing  for  a  general 
system  of  internal  improvement.  Under  this  statute  it  is  held 
that  the  assessment  and  payment  of  damages  for  injuries  done 
to  real  estate  in  constructing  a  canal  must  be  in  gold  and  silver, 
and  cannot  be  made  in  canal  scrip.^     In  Vermont,  on  a  recog- 

*  RadclifFe's  Ex'rs  v.  Mayor  of  Brooklyn,  4  §  Beekman  v.  S.  R.  R.  Co.  3  Paige,  45. 

Corns.  195.  II  Gold   v.  Vermont    Central   Railroad,    19 

t  In  New  York,  wherever  the  governor  is  Verm.  479.  In  Tennessee,  the  proceeding  by 
authorized  by  law  to  take  possession  of  private  writ  of  ad  quod  damnum,  to  assess  damages 
property,  a  writ  of  ac?  quod  damnum  is  provided  ;  where  the  land  of  the  applicant  is  subject  to  a 
and  the  benefits  of  this  proceeding  have  in  public  easement,  has  been  decided  to  be  not  in 
many  cases  been  extended  to  the  United  derogation  of  the  common  law,  but  in  accord- 
States.     2  R.  S.  589.  ance   with    its  provisions.     Nolensville  Turn- 

The  original  writ  of  ad  quod  damnum  lay  pike  Co.  v.  Quimby,  8  Humphreys,  476. 

where  a  man  would  give  lands  or  tenements  1[  The  State  v.  Blackmo,  8  Blackf  246.  See 

in  mortmain  ;  before  the  license  of  the  king  also,  The  State  v.  Digby,  5  Blackf  54-3,  and 

and  chief  lord  to  make  such  gift  was  granted,  Lucas  v.  Hawkins,  8  Blackf.  337.     As  to  as- 

the  course  was  to  sue  unto  the  king  to  have  a  sessment  of  damages  on  a  writ  of  ofZ  quod  dam- 

license  to  sue  this  writ  out  of  the  Chancery,  num  in  the  same  State,  see  Chapman  v.  Groves, 

directed   unto  the  escheator,  to  inquire  what  8  Blackf  308,  and  Peck  v.  Van  Renssalaer,  8 

damage  it  would  be  to  the  king  or  to   other  Blackf.  312.     An  interesting  discussion  as  to 

Eersons  if  the  king  should  grant  the  license. —  the  principle  of  railroad  damages  willl  be  fuund 

'atura  Brcvium,  in  voc.  509.  in    Somerville  and  Eastern  Railroad   Co.   v. 

t  Smith  V.  Helmcr,  7  Barb.  S.  C.  R.  416.  Doughty,  2  Zabriskie,  495. 

1  As  a  general  rule  the  compensation  should  precede  or  be  concurrent  in  point  of  time  with 
the  taking.  Thompson  v.  The  Grand  Gulf  R.  and  Banking  Co.  3  How.  (Miss.)  240  ;  2  Kent's 
Com.  386,  note  f ;  Bonajjarte  v.  The  Camden  and  Amboy  II.  R.  Co.  1  Bald.  C.  C  K.  205  ; 
Stewart  v.  Raymond  R.  R.  Co.  7  Sm.  &  M.  (Miss.)  568. 

'^  See  also  Rexford  v.  Knight,  11  N.  Y.  308;  Bloodgood  v.  Mohawk  and  Hudson  R.  R.  Co. 
18  Wend.  9  ;  Baker  v.  Johnson,  2  Hill,  342  ;  People  v.  Haydeu,  6  Hill,  359.  l"or  the  general 
principle  see  preceding  note. 

^  This  is  on  the  ground  that  the  trial  by  jury  is  rcfjuired  only  on  the  determination  of  issues 
of  fact  in  courts  of  justice.  The  assessment  of  damages  is  not  a  trial.  Ibid.  See  Vanhorne's 
Lessee  v.  Dorrance,  2  Dall.  304,  313. 


668  DAMAGES    UNDER    STATUTES.  [CH.    XXIII. 

nizance  given  on  appeal  from  a  judgment  rendered  in 
[568]    favor  of  the  land-owner,  the  plaintiff  is  not  entitled  to 

recover  the  value  of  the  rents  and  profits,  but  only  his 
costs.*  In  Massachusetts,  an  action  against  a  town  to  recover 
damages  assessed  by  county  commissioners  in  laying  out  a  town 
way  over  the  plaintiff's  land,  cannot  be  commenced  before  the 
land  is  entered  on  and  possession  thereof  taken.f 

In  the  same  State,  where  a  party  who  has  agreed  to  convey 
land  for  a  sum  certain  to  a  railroad  company,  refuses  to  perform, 
and  obtains  an  assessment  of  his  damages  caused  by  the  laying 
out  the  road,  the  measure  of  the  damages  to  which  he  is  liable 
for  the  breach  of  his  agreement,  is  the  excess  of  the  sum  assessed 
over  the  sum  for  which  he  agreed  to  convey.J  ^ 

*  Drew  V.  Chamberland,  19  Verm.  573.  v.  Knowles,  3  Dow,  280. 

t  Harding  v.   Inhabitants   of  Medway,   10  In  this   country,  on   the  same   sulycct,  in 

Met.  465 ;   La  Croix  v.  The  Same,  12  Met.  Massachusetts,  Patterson  v.  Boston,  23  Pick. 

123.  425  ;   Webber  v.  Eastern   R.  R.  Co.  2   Met. 

t  Western  R.  R.  Co.  v.  Babcock,  6  Met.  346.  147  ;  Dodge  v.  County  Commissioners,  3  Met. 

For  other  cases  in  Massachusetts,  as  to  Lands  381  ;  Ashby  v.  Eastern  R.  R.  Co.  5  Met.  368 ; 

flowed  by  mill-dams,  see  Leonard  v.  Schenck,  Endicott,  petitioner,  24  Pick.  339. 

3  Met.  357  ;  Snell  v.  Bridgewater  C.  G.  Mannf.  In  New  York,  in  a  suit  on  an  attachment 

Co.  24   Pick.    296;   Williams   v.  Nelson,  23  bond,  given  on  the  commencement  of  a  suit  in 

Pick.   141  ;    Hunt  v.  Whitney,  4  Met.    603 ;  the  Justices'  Court,  by  which  the  plaintiff  is 

Fitch   V.   Stevens,  2   Met.  505  ;    Seymour  v.  to  pay  all  the  damages  and  costs  the  defend- 

Carter,  2  Met.  520  ;  Fitch  v.  Seymour,  9  Met.  ant  may  sustain  by  reason  of  the  issuing  of  the 

462.  attachment;  if  the  plaintiff  in  the  attachment 

In  Maine,  as  to  flowing  lands,  Nelson  v.  fail,  the  defendant  is  entitled  to  recover  against 
Buttei-ficld,  21  Maine,  220  ;  Seidensparger  v.  the  obligors,  not  only  the  costs,  but  also  dam- 
Spear,  17  Maine,  123.  Under  the  poor-debtor  ages  for  the  seizure  and  detention  of  the  prop- 
act,  in  the  same  State,  Cordis  v.  Sager,  14  erty.  Dunning  v.  Humphrey,  24  Wend.  31. 
Maine,  475 ;  French  v.  M'Allister,  20  Maine,  But  a  subsequent  attachment  and  judgment 
465  ;  Hathaway  v.  Crosby,  17  Maine,  448.  thereon  may  be  given  in  evidence  in  mitiga- 

In  Massachusetts,  as  to  sheriffs,  &c.,  Bart-  tion  of  damages.     Earl  v.  Spooner,  3  Denio, 

lett  V.  Eveleth,  4  Met.  149.  246. 

In  Mississippi,  as  to  the  same  subject,  Gwin  As  to  other  cases  of  damages  under  statutes 

V.  Breedlove,  2Howard,  29.  in  New  York,  see  Jackson  v.  Covert's  Adm'rs, 

In  England,  as  to  works  of  public  improve-  5  Wend.  139  ;   People  v.  Supervisors  of  St. 

ment,  Lee  v.  Milner,  2  Mees.  &  Wels.  825  ;  Lawrence,  5  Cow.  292 ;  Stewart  v.  McGuin, 

Thicknesse  v.  Lancaster  Canal  Company,  4  1   Cow.  99  ;  Wendell  v.  Washington  &  War- 

Mees.    &  Wels.  472;    Turner  v.  Sheffield  &  ren  Bank,  5  Cow.  161 ;  Baldwin  u.  Calkins,  10 

Rotherham  Railway  Co.    10  Mees.  &  Wels.  Wend.  167. 
425  ;  Goldie  v.  Oswald,  2  Dow,  535  ;  Burnet 

1  The  decisions  since  the  former  editions  of  this  book  on  the  principles  applicable  to  the 
assessment  of  damages  for  taking  lands  for  the  railways  and  highways  which  are  spreading  like 
spider  webs  over  this  broad  land,  are  literally  "  too  numerous  to  mention  ;  "  and  as  we  have 
before  said,  we  I'efrain  from  citing  them  in  general,  further  than  to  illustrate  the  princi]:>lcs  we 
have  summarily  laid  down.  Ante,  565,  note.  As  the  subject,  however,  has  received  frequent 
and  careful  consideration  in  Massachusetts,  the  principal  late  decisions  of  the  Supreme  Court 
of  that  Commonwealth  on  the  subject  are  subjoined  :  Tufts  v.  City  of  Charlestown,  4  Gray, 
537 ;  Brown  v.  Providence,  Warren,  and  Bristol  R.  R.  Co.  5  Gray,  35  ;  Breed  v.  Eastern  R. 
R.  Co.  5  Gray,  470  (note) ;  First  Parish  in  Woburn  v.  County  of  Middlesex,  7  Gray,  106 ; 
Farwell  v.  City  of  Cambridge,  11  Gray,  413  ;  Plympton  v.  Inhabitants  of  Woburn,  11  Gray, 
415  ;  Brainard  v.  Boston  and  N.  Y.  Cent.  R.  R.  12  Gray,  407  ;  Dickenson  v.  Inhabitants  of 
Fitchburg,  13  Gray,  546;  Old  Colony  and  Fall  River  R.  R.  Co.  v.  County  of  Plymouth,  14 
Gray,  155  ;  First  Church  in  Boston  v.  City  of  Boston,  14  Gray,  214  ;  Grand  Jmiction  Railroad 
and  Depot  Co.  v.  County  Commissioners  of  Middlesex,  14  Gray,  553  ;  Boston  and  Maine  R. 
R.  V.  County  of  Middlesex,  1  Allen,  324  ;  Whitman  v.  Boston  and  Maine  R.  R.  3  Allen,  133, 
'and  7  Allen,  313  ;  Paine  v.  City  of  Boston,  4  Allen,  168.  Et  vid.  Central  Bridge  Cori^oration 
V.  City  of  Lowell,  15  Gray,  106,  for  a  discussion  of  the  principles  which  determine  tlie  amount 
of  damages  where  a  francliise  is  taken  by  right  of  eminent  domain. 


CH.    XXIII.]  NON-ATTENDANCE   OF   WITNESSES.  669 

Statutes  for  Attendance  of  Witnesses.  —  An  interest-  [0G9] 
ing  though  not  very  numerous  class  of  cases  rehites  to 
the  statutes  which  impose  penalties  on  witnesses  for  non-attend- 
ance in  obedience  to  subpoena.  The  original  English  statute* 
imposed  a  penalty  of  ten  pounds  on  a  witness  who  made  default 
and  refused  to  appear,  "  having  not  a  lawful  or  reasonable  let  or 
im])ediment  to  the  contrary,  the  said  penalty  to  be  recovered  by 
the  party  so  grieved."  Under  this  statute,  and  those  in  analogy 
to  it  enacted  in  this  country,  it  ha's  been  held  that  to  entitle  the 
plaintiff  to  recover  it  must  appear  that  the  witness  was  material, 
and  that  damages  resulted  from  his  non-attendance ;  evidence, 
therefore,  that  the  plaintiff  had  admitted  that  the  defendant 
knew  nothing  about  the  matter  in  controversy,  is  admissible.! 
A  similar  liability  exists  at  common  law,  independent  of  the 
statute,  and  may  be  enforced  by  an  action  on  the  case. J  ^ 

Eoads  and  Bridges. — In  many  of  the  States,  and  particularly 
in  New  England,  laws  have  been  passed  to  compel  the  towns  to 
keep  their  highways  and  bridges  in  repair,  and  requiring  them 
to  make  compensation  for  any  injury  resulting  from  their  neg- 
*lect.  In  Connecticut,  it  has  been  decided  on  a  statute  of  this 
kind,  that  towns  liable  to  Tpayj'tist  damages  for  defects  in  bridges 
or  roads,  are  not  liable  for  consequential  damages,  such  as  the  loss 
of  service,  and  expense  of  nursing,  resulting  to  a  person  from  in- 
juries to  his  wife  and  daughter.§ 

The  Maine  statute  provides  that  "  any  person  who  shall  suffer 
any  damage  in  his  property,"  through  any  defect  in  a  highway, 

*  5  Eliz.  c.  9,  §  12.  t'.  Baker,  10  J.  R.  248  ;  see  Hurd  v.  Swan,  4 

t  Goodwin   V.  West,   Cro.   Car.   522,  540 ;  Denio,  75. 
Courtney  v.  Baker,  3  Denio,  27.  §  Chidsey  v.  Canton,  17  Conn.  475. 

t  Pearson  v.  lies,  2  Doug.  561  ;  Hasbrouck 

1  It  is  provided  by  statute  in  New  York  that  a  witness  for  failure  to  attend  a  trial  pursuant 
to  a  subpania,  shall  be  responsible  in  a  proper  action  to  the  aggrieved  party  for  the  loss  and 
hindrance  from  such  failure,  and  for  all  other  damages  sustained  thereby,  besides  the  forfeiture 
to  the  aggrieved  party  of  a  si)ecific  sum  in  addition  to  such  damages  to  be  recovered  in  the 
same  action  or  another  (2  R.  S.  N.  Y.  400).  Similar  provisions  exist  in  England  (Stat.  5 
Elizabeth,  c.  9,  §  12,  supra),  and  generally  in  the  other  States  of  the  Union.  The  action  for 
damages  is  in  affirmance  of  the  common  law  (Courtney  v.  Baker,  3  Denio,  27  ;  Lane  v.  Cole, 
12  Barb.  680  ;  Heermans  v.  Williams,  11  Wend.  636).  If  the  party  omits  to  go  to  trial  for  the 
reason  of  the  witnesses'  non-attendance,  he  may  recover  the  costs  thus  fruitlessly  incurred. 
Needham  v.  Frascr,  1  C.  B.  815  ;  Hurd  v.  Swan,  4  Denio,  75. 

In  the  case  last  cited,  it  is  doubted  whether,  where  the  demand  is  a  large  one,  the  plaintiff 
would  be  justified  in  going  on  with  the  trial  with  the  intent  of  charging  the  consequences  on 
the  witness  by  subjecting  him  to  the  heavy  penalty  of  paying  the  whole  debt.  Practically,  it 
would  doubtless  be  difficult  in  most  cases  to  show  that  the  loss  of  a  debt  or  the  failure  in  a  suit 
resulted  from  the  non-attendance  of  a  particular  witness.  But  wliere  a  plaintiff  is  non-suited 
for  want  of  the  testimony  of  a  witness  duly  and  seasonably  subpceuaed,  he  will  be  entitled  to 
recover  from  the  witness  his  costs  and  expenses  of  the  suit  without  showing  that  he  had  a 
good  cause  of  action  in  the  first  suit.  Lane  v.  Cole,  12  Barb.  680.  See  Amey  v.  Long,  9  East, 
472. 


670  DAMAGES    UNDER    STATUTES.  [CH.    XXIII.' 

may  recover  of  the  town  liable  to  keep  the  highway  in  repair, 
the  amount  of  such  damage.  In  a  case  on  this  statute,  it  was 
held  that  a  plaintiff  travelling  with  a  hired  horse,  which  had 
been  ruined  by  a  defect  in  the  road,  and  the  value  of  which  he 
had  paid  to  the  owner,  could  recover  the  sura  so  paid  of  the 
town.* 

[570]  Injuries  by  Animals. —  Injuries  done  by  animals  form 
another  class.  At  common  law,  the  owner  of  a  dog  is  ac- 
countable for  mischief  done  by  him,  if  he  had  notice  of  the 
animal's  vicious  propensities.  This  liability  is  enlarged  by  statute 
in  New  York ;  where  the  owner  of  the  dog  is  made  liable  for  in- 
juries done  to  sheep,  although  he  has  no  previous  notice.  In  an 
action  on  the  statute,  the  proprietor  is  not  liable,  however,  to  ex- 
emplary damages;  and  where  dogs  of  several  owners  join  in  the 
trespass,  each  owner  is  severally  liable  only  for  the  damage  done 
by  his  own  dog.f  ^  In  Massachusetts,  it  is  enacted  "  that  any 
owner  or  keeper  of  any  dog  shall  forfeit  to  any  person  injured 
by  such  dog,  double  the  amount  of  the  damage  sustained  hy  Mm  ;  " 
and  it  has  been  held  in  construing  this  language,  that  when  the 
action  is  brought  by  the  plaintiff  for  injury  done  to  his  minor 
son,  he  might  recover  for  the  loss  of  the  child's  service,  and  the 
expense  of  his  cure.J 

Statutes  giving  Damages.  —  The  rule  that  penal  statutes  are 
to  be  strictly  construed,  is  applied  to  enactments  on  the  subject 
of  damages.  So  in  Mississippi,  where  a  statute  gave  a  penalty 
of  "  damages  in  lieu  of  interest  not  exceeding  thirty  per  cent, 
per  annum  against  attorneys  for  refusing  to  pay  over  moneys 
when  collected  for  their  clients,"  it  was  held  a  penal  statute  to 
be  strictly  construed,  and  that  none  but "  clients,''  strictly,  could 
avail  themselves  of  it.§ 

We  have  seen,  under  the  head  of  debt,  that  damages  are 
awarded,  not  for  the  debt,  which  is  recoverable  in  mimero,  but  for 
its  detention.  This  principle  is  applied  to  penalties  given  by 
statutes ;  which  must,  unless  some  other  form  of  action  is  pro- 

*  Littlefield    v.   Biddeford,   29    Maine  R.  sell  v.   Tomlinson,  2  Conn.  206  ;   Adams  v. 

310.  Hall,  2  Verm.  9. 

t  Auchmuty  v.  Ham,   1   Denio,  495  ;  Van  J  McCarthy  v.  Guild,  12  Met.  291. 

Steenburgh  i;.  Tobias,   17   Wend.  562;  Rus-  §  Sloam  y.  Johnson,  14  Sm.  &  M.  47. 


1  See  also  as  to  the  law  in  New  York,  Steele  v.  Smith,  3  E.  D.  Smith's  C.  P.  R.  321  ; 
Wheeler  v.  Brant,  23  Barb.  324  ;  Fish  v.  Skut,  21  Ibid.  333;  also  Earl  v.  Van  Alstine,  8  Barb. 
630 ;  in  which  case  the  injury  was  occasioned  by  bees.  Consult  also,  on  the  law  of  other 
States,  Campbell  v.  Brown,  19  Pcun.  St.  359;  Johnson  v.  Wing,  3  Mich.  163;  Smith  v.  Can- 
sey,  22  Ala.  568. 


CII.  XXI II.]         DOUBLE  AND  TREBLE  DAMAGES.  G71 

vidcd,  be  recovered  in  an  action  of  debt.*     But  a  nice  question 
lias  presented  itself  on  the  construction  of  statutes  of  this  de- 
scription, whether  in  the  particuhxr  case  tlie  penalty  is  to  be  re- 
regarded  as  a  debt  or  as  unliquidated  damages.    There  is  a 
clear  distinction  between  actions  brought  simply  for  pen-  [571] 
alties,  and  actions  brought  under  penal  statutes  to  recover 
compensation  for  injuries.!     If  a  sum  certain  be  given,  by  way 
of  penalty,  to  the  party  aggrieved,  he  may  recover  not  only  the 
money,  but  damages  for  its  detention.^:     But  if  the  penalty  be 
given   to   the  party  suing,  a  common  informer  is  not  allowed 
damages  for  the  detention.§     But  if  double  or  treble  damages  • 
be  given  by  way  of  j^enalty,  not  even  the  party  aggrieved  can 
have  damages  for  the  detention ;  because  the  sum  being  uncer- 
tain, it  is  not  to  be  considered  as  a  debt.|| 

Double  and  Treble  Damages.  —  Where  double  or  treble  dam 
ages  are  given,^  it  has  been  held  doubtful  how  the  double  or 
treble  value  is  to  be  arrived  at ;  whether  the  jury  are  to  find  sin- 
gle damages  to  be  increased  by  the  court,  or  whether  they  are 
to  find  double  the  whole  amount  awarded  by  the  statute.^  The 
general  and  better  practice  would  seem  to  be,  for  the  jury  to 
find  single  damages,  and  for  the  court  to  double  or  treble  them ; 
although  it  would  probably  be  equally  good  for  the  jury  to 
assess  the  augmented  damages,  if  it  appear  on  the  record  that 
such  assessment  was  in  fact  made.^  But  in  debt  for  a  penalty  of 
double  the  value  of  a  vessel  and  cargo  under  the  embargo  act 
of  9th  January,  1808,  it  was  held  by  Mr.  Justice  Story,  that  the 
verdict  of  the  jury  must  be  taken  to  be  the  double  value,  un- 
less the  contrary  appears.** 

*  AVhcre  a  statute  ci-eates  a  liability  to  pay  64 ;  Sayer  on  Damages,  242  ;  Bennett  v.  Hart, 

money,  but  does  not  prescribe  any  remedy  by  Sayer   on    Damages,   244 ;    Grant    v.   Astle, 

which   a  recovery  shall  be  had,  debt   is   the  Doug.  723,  note,  731  ;  Lobdell  v.  Inhabitants 

proper  remedy.     Sti'auge  v.  Powell,  15  Ala.  of  New  Bedford,  1  Mass.  R.  153. 

452.  **  Cross  v.  The  United  States,  1  Gallison, 

t  Fife  V.  Bousfield,  6  Q.  B.  R.   100;  and  26.     In  Maine  it  has  been  said,  that  where  a 

Fitzball  V.  Brooke,  6  Q.  B.  R.  873.  statute  gives  double  damages  it  is  wholly  im- 

I  North  y.  Wiugate,  Cro.  Car.  559.  Ante,  material  whether  they  be  assessed  by  the  court 
392.  or  the  jury.     Quiniby  v.   Carter,  20  Maine, 

§  North  V.  Musgrave,  KoI.  Abr.  574,  Dam-  218.     See  also,  Warren  v.  Doolittle,  5   Cow. 

ages,  P.  678. 

II  Dagg  V.  Penkevon,  Cro.  J.  70.  Mr.  As  to  double  and  treble  damages  in  New 
Sayer  states  this  proposition  positively  ;  but  it  York,  see  Hubbell  v.  Rochester,  8  Cow.  115  ; 
seems  by  the  report  that  the  plaintiff"  released  Brown  v.  Bristol,  1  Cow.  17G;  Livingston  v. 
his  damages  "because  he  was  in  doubt."  Plainer,  1  Cow.  175  ;  Benton  v.  Dale,  1  Cow. 

1  The  authorities  are,  Bro.  Abr.  Damage,  160;  Morris  v.  Brush,  14  J.  R.  328;  Beekniau 
pi.  70  ;  5   Com.  Dig.  Plead.  2,  §  16  ;  2  Roll.     v.  Chalmers,  1  Cow.  584. 

1  The  demand  for  such  damages  must  be  expressly  inserted  in  the  declaration,  which  must 
either  recite  the  statute,  or  conclude  "  to  the  damage  of  the  plaintiff'  against  the  form  of  the 
statute."  Chapman  r.  Einerie,  5  Cal.  239,  and  authorities  cited.  See,  as  to  these  damages  in 
patent  cases,  post,  573,  note. 

2  See  Welsh  v.  Anthony,  16  Penn.  St.  254. 


672  DAMAGES    UNDER    STATUTES.  [CH.    XXIII. 

Interest.  —  We  have  already,  under  the  head  of  interest,  ex- 
amined some  of  those  statutes  which  give  damages,  or 
[572]  interest  by   way  of  damages,  on   unsustained   writs  of 
error.     Sometimes  a  penalty  is  imposed,  as  in  Ohio,  of 
simple  cost.* 

Statute  as  to  Flowage.  —  The  subject  of  damages  arising 
from  the  overflow  of  lands,  resulting  from  the  erection  of  dams, 
has  been  in  many  States  of  the  Union  brought  very  much  under 
the  control  of  special  statutes.  At  common  law  the  riparian 
land-owner  has  a  right  to  have  the  natural  water-course  kept 
open  the  whole  time.^  But  in  order  to  give  security  and  quiet 
to  mill-owners  in  several  States  of  the  Union,  statutes  have  been 
passed,  as  in  Massachusetts,  to  regulate  the  erection  and  main- 
tenance of  those  dams,  which  if  observed  by  the  proprietor  will 
secure  him  from  any  action  at  common  law.f  But  if  the  pro- 
visions of  these  statutes  are  not  complied  with,  as  where  the 
dam  is  kept  up  at  a  season  of  the  year  prohibited,  the  mill-owner 
shall  have  no  benefit,  of  the  statute  but  be  liable,  as  if  it  had 
not  been  passed,  to  a  suit  at  common  law  for  the  disturbance.^ 
In  the  same  State  it  has  been  held  that  the  provisions  of  these 
statutes  for  the  support  and  regulation  of  mills,  cannot  be  so 
construed  as  to  justify  or  excuse  the  erection  of  a  dam  in  such 
a  manner  as  to  overflow  a  public  highway  and  render  it  impass- 
able ;  §  and  in  an  action  by  the  town  against  a  mill-owner  in  such 
a  case,  the  plaintiffs  are  entitled  to  recover  the  expense  incurred 
in  repairing  the  road,  with  interest,  but  not  the  costs  of  an  in- 
dictment for  not  seasonably  repairing  the  road.|| 

New  York  Railroad  Act.  —  In  New  York,  by  the  general 
railroad  act  of  27th  March,  1848,  when  the  company  neglects  to 
erect  fences  at  the  sides  of  the  road,  and  to  construct  and  main- 
tain cattle-guards  at  road  crossings,  the  company  is  liable  for 
the  death  of  a  cow  which  comes  on  the  track  and  is  killed, 

*  Brady  v.  Holderman,  19  Ohio,  26.  §  Commonwealth  v.  Stevens,  10  Pick.  247. 

t  Stowell  w.  Flagg,  11  Mass.  364.  ||  Inhabitants    of   Andover   v.    Sutton,    12 

X  Johnson  v.  Kittredfre,   17  Mass.  76;  Hill  Met.  182. 
and  wife  v.  Savles,  12  Met.  142. 

1  See  a7ite,  137,  et  seq.  Where  there  was  a  covenant  of  seisin  in  a  deed  of  mill  property 
of  the  privilege  of  raising  the  water  of  a  creek  to  a  certain  height,  but  the  grantee  could  not 
raise  it  to  that  height,  without  liability  for  damages  for  flowage,  the  measure  of  his  damages 
for  the  grantor's  breach  of  covenant,  was  the  difference  between  the  value  of  the  property  at 
the  time  of  the  purchase  with  the  right  to  maintain  the  water  at  the  height  stipulated  in  the 
deed,  and  its  actual  value,  with  the  right  to  maintain  the  water  at  the  height  only  at  which  the 
grantee  was  authorized  to  maintain  it.  The  ascertainment  of  this  difference  was  proper  for  the 
jury.     Hull  v.  Gale,  20  Wise.  292. 


CII.    XXni.]  INFRINGEMENT    OF    PATENTS.  673 

without  any  proof  of  negligence  on  the  part  of  the  agents  of  the 
company.* 

Landlord  and  Lessee. —  Massachusetts  Statute.  —  Li  Massa- 
chusetts, where  the  lessee,  on  appealing  from  a  judgment  in  favor 
of  the  lessor,  gives  the  statutory  bond  to  pay  the  intervening 
rent  and  damages,  such  damages  are  only  the  rent  and  interest, 
and  cannot  be  construed  to  embrace  loss  of  the  sale  of 
the  premises  or  injury  to  them ;  nor  can  proof  be  re-  [573] 
ceived  that  the  occupation  was  worth  more  than  the 
stipulated  rent.f 

New  York  City  Lien  Law.  —  Under  the  New  York  City  me- 
chanics' act,  as  it  is  called,  intended  to  protect  material  men 
and  laborers,  for  work  done  and  materials  furnished  for  build- 
ings, the  claimant  cannot  obtain  a  lien  on  unliquidated  dam- 
ages, which  the  builder  has  sustained  by  being  wrongfully  dis- 
charged, and  thus  prevented  from  completing  his  contract ;  but 
is  restricted  to  such  funds  as  are  due  and  to  become  due  for 
actual  performance.^: 

Patents.  —  Under  this  head,  too,  should  be  considered  the 
subject  of  actions  for  infringement  of  patents.  The  patent  act 
of  the  United  States  authorizes  the  jury  in  cases  of  infringement, 
to  give  a  verdict  for  the  actual  damages  sustained ;  and  we  have 
already  had  occasion  to  consider  the  question,  whether  counsel 
fees  can  be  allowed  by  way  of  damages  in  actions  of  this  class.§  ^ 
As  to  the  damages  themselves,  it  has  been  held  that  full  dam- 
ages are  usually  given  for  the  patented  articles  which  have  been 
made  and  sold  to  be  used,  and  not  for  the  selling  or  buying  or 
making  alone.||  If  the  maker  of  the  machine  appear  in  truth 
to  be  ignorant  of  the  existence  of  the  patent,  and  do  not  intend 

'   *  Suydam  w.  Moore,  8  Barb.  S.  C.  E.  358;  t  Hoyt  v.  Miner,  7  Hill,  525. 

Waldron  v.  Rensselaer  &  S.  R.  Co.  8  Barb.  S.  §  Ante,  99,  et  seq. 

C.  K.  390.  II  10  Wheat.  350 ;  3  McLean,  427. 
t  Bartholomew  v.  Chapin,  10  Met.  1. 


^  The  law  in  this  country  is  now  settled  against  the  allowance  of  counsel  fees,  or  even  their 
consideration  by  the  jury  as  an  element  of  the  plaintiff's  damages  in  these  actions.  Teese  v. 
Huntington,  23  How.  (U.  S.)  2  ;  Day  v.  Woodworth,  13  How.  363,  ante,  100,  note  1  ;  Stimp- 
son  V.  The  Railroads,  1  Wall.  Jr.  164.  Nor  are  counsel  fees  or  other  expenses  of  obtaining  an 
injunction  against  the  infringement  of  a  trade-mark  included  in  the  damages  for  the  infringe- 
ment. Burnett  v.  Phalon,  21  How.  Pr.  R.  (N.  Y.)  100.  But  in  lingland  the  expenses  into 
which  the  plaintiff  has  been  plunged  in  consequence  of  the  defendant's  unlawful  acts,  are  re- 
coverable as  special  damages  in  these  cases.  Dixon  v.  Fawcus,  3  L.  T.  R.  693  (Q.  B.). 
43 


674  DAMAGES   UNDER    STATUTES.  [cil.    XXIII. 

any  infringement,   though  this  will  not  altogether  exonerate 
him,  it  will  tend  to  mitigate  the  damages.*  ^ 

*  Bryce  v.  Dorr,  3  McLean,  583  ;  Whitte-     son,  11    Howard,   587-607.     See  also,  Lowell 
more   v.    Cutter,   1    Gallison,  429;   Jones   v.     v.  Lewis,  1  Mason  C.  C.  182. 
Pearce,  Webster's  P.  C.  122;  Hogg  i;.  Eraer- 

1  The  "  actual  damages  "  which  by  the  patent  act  the  plaintiff  is  entitled  to  recover  for  the 
infringement  of  his  patent,  may  be  trebled  by  the  court  in  its  discretion.  Act  July  4,  1836,  § 
16. 

"  The  price  of  the  machine,  the  nature,  actual  state,  and  extent  of  the  use  of  the  plaintiff's 
invention,  and  the  particular  losses  to  which  he  may  have  been  subjected  by  the  piracy,  are  all 
proper  ingredients  to  be  weighed  by  the  jury  in  estimating  the  damages,  valere  quantum  vcdeant." 
Earle  v.  Sawyer,  4  Mass.  14,  per  Story,  J. 

But  although  the  jury  in  these  cases  have  a  large  discretion  in  the  ascertainment  of  the 
"  actual  damages,"  according  to  the  circumstances,  they  must  deduce  them  by  calculation  from 
the  facts  proved.     City  of  New  York  v.  Ransom,  23  How.  (U.  S.)  487. 

It  has  been  repeatedly  held  that  in  these  "  actual  damages  "  should  be  included  all  the  actual 
net  profits  which  the  defendant  had  derived  from  the  use  of  the  plaintiff's  invention.  This  is 
on  the  ground  that  if  the  defendant  had  not  sold  his  machines  there  would  have  been  a  de- 
mand to  an  equal  extent  for  those  of  the  plaintiff  who  would  have  received  the  profits.  Buck 
V.  Hermance,  1  Blatchf.  C.  C.  R.  398;  Wilbur  v.  Beecher,  2  Blatchf.  132;  Hall  v.  Wiles,  2 
Blatchf.  194  ;  Pitts  v.  Hall,  2  Blatchf.  229;  McCormick  v.  Seymour,  2  Blatchf.  240.  And  it 
was  said  by  Mr.  Justice  Nelson,  at  the  circuit,  in  the  case  of  Pitts  v.  Hall  (supra),  that  "if  on 
looking  into  the  profits  made  by  the  defendant,  the  jury  are  of  opinion  that  they  do  not  cor- 
respond with  the  fair  profits  which  the  plaintiff,  if  left  alone,  would  have  realized,  they  are  not 
bound  by  the  measure  of  the  defendant's  profits,  but  have  a  right  to  look  into  the  profits  which 
the  patentee  would  have  made  if  not  interfered  with." 

But  the  case  of  McCormick  v.  Seymour,  supra,  was  reversed  by  the  Supreme  Court  of  the 
United  States  on  the  question  of  the  measure  of  damages,  and  the  rule  is  so  far  modified  as  to 
permit  the  recovery  of  the  infringer's  gains  by  the  inventor,  to  the  extent  only  that  he  is  him- 
self proved  to  have  been  deprived  of  the  profits  of  his  invention,  by  the  unlawful  use  or  sale. 
It  does  not  apply  where  the  profit  of  the  patentee  consists  neither  in  the  exclusive  use  of  the 
thing  invented,  nor  in  the  monopoly  of  making  it  for  others  to  use.  See  Seymour  v.  McCor- 
mick, 16  How.  (U.  S.)  480  (infra).  And  the  profits  allowed  must  have  been  actually  realized 
by  the  defendant.  It  is  not  enough  that  they  might  have  been,  with  reasonable  diligence. 
Dean  v.  Mason,  20  How.  (U.  S.)  198.  But  in  England  under  the  42d  section  of  the  15  and 
16  Vic.  c.  83,  which  empowers  the  court  in  which  an  action  for  the  infringement  of  a  patent  is 
pending,  or  a  judge  of  the  court  when  the  court  is  not  sitting,  "  to  make  such  order  for  an 
injunction,  inspection,  or  account,"  as  to  the  court  or  judge  may  seem  fit,  it  is  held  that  the 
court  will  only  direct  an  account  of  the  "  profits  made  by  the  defendants  by  means  of  the  in- 
fringement," and  not  of  those  of  which  the  plaintiff  has  been  deprived.  Elwood  v.  Christy, 
18  C.  B.  (N.  S.)  494.  See,  as  to  the  difliculties  in  taking  an  account  of  the  profits  made  by  the 
piratical  use  of  a  patented  invention,  Crosley  v.  The  Derby  Gaslight  Co.  3  M.  &  Cr.  428. 

It  has  been  said  by  eminent  authority  that  if  the  defendants  were  sued  a  second  time  for  vio- 
lating the  plaintiff's  right,  it  might  be  proper  for  the  jury  to  give  vindictive  damages.  Alden 
V.  Dewey,  1  Story,  336.  But  the  power  conferred  on  the  court  of  increasing  the  "  actual  dam- 
ages" found  by  the  jury  in  these  cases  to  the  extent  of  trebling  their  verdict  (supra),  appears 
to  be  in  lieu  of  the  right  they  have  in  other  actions  of  tort,  of  giving  exemplary  damages 
Seymour  v.  McCormick,  16  How.  480,  489.  And  thus  considered,  it  is,  in  proper  cases,  exer- 
cised in  practice  by  the  court.     Guyon  v.  Serrell,  1  Blatchf.  C.  C.  R.  244. 

Where  there  is  no  established  patent  or  license  fee,  general  evidence  must  be  resorted  to,  to 
get  at  a  fair  measure  of  damages.  Evidence  of  the  utility  of  the  invention  and  its  advantage 
over  the  old  modes  or  devices  used  for  working  out  similar  results,  is  appropriate  and  pertinent. 
In  ascertaining  the  damages  on  such  evidence,  the  jury  are  not  to  estimate  them  for  the  whole 
term  of  a  patent,  but  for  the  period  of  the  infringement  only,  since  a  recovery  does  not  vest 
the  infringer  with  the  right  to  continue  the  use.  Suffolk  Company  v.  Hayden,  3  Wallace  (U. 
S.),  315.  Where  a  patentee  is  accustomed  to  sell  rights  under  his  patent  to  use  his  invention, 
the  customary  charge  for  the  right  is  the  measure  of  the  damages  he  is  entitled  to  recover  for 
an  infringement,  with  interest  from  the  time  of  the  infringement.  But  if  he  is  not  accustomed 
to  sell  rights,  but  uses  the  patent  exclusively  himself,  a  different  measure  is  adopted.  If  the 
patent  is  for  an  entire  machine,  he  is  entitled  as  damages,  in  case  of  an  infringement,  to  the 
profits  he  could  have  made  in  constructing  and  vending  his  machine  over  the  mere  profits  of  its 
mechanical  construction.  If  the  patent  is  one  for  any  improvement  on  a  machine,  he  is  enti- 
tled, as  a  measure  of  damages,  to  all  the  advantages  of  the  use  of  his  patented  improvement, 
excluding  the  jirofits  of  the  manufacture,  and  the  value,  if  any,  of  the  use  of  the  old  machine. 
Seymour  v.  McCormick,  16  How.  (U.  S.)  480;  19  How.  (U.  S.)  96;  McCormick  v.  Seymour, 


OH.  xxiil]  against  united  states  officials.  675 

Claims  against  United  States  Officials.  —  Where  a  claim  for 
damages  exists  apjainst  agents  or  officers  of  the  United  States 
government,  and  the  Congress  of  the  United  States  has  acted 
on  the  claim,  and  passed  a  statute  awarding  damages  for  the 
injury  done,  that  is  a  final  disposition  of  the  matter,  and  no  fur- 
ther redress  can  be  obtained  from  the  courts  of  law.* 

*  U.  Stiitcs  V.  Williams,  4  McLean,  567.  where  the  power  of  the  Lords  of  Treasury  to 

Sec  llcj^ina  u.  Tlie  Mayor,  &c.  of  Lichfield,  make  compensation  to  a  party  removed  from 

15  Jur.  812  ;  a  case  upon  the  P'nglish  Munic-  office  was  considered. 

ipal  Corporation  Act,  5  &  6  Will.  IV.  c.  76, 

3  Blatchf.  C.  C.  R.  209.  In  such  a  case,  the  jury  cannot  allow  the  profits  on  the  sale  of  the 
entire  thin<^  as  improved.  Jones  v.  Moorehead,  1  Wall.  155;  Seymour  v.  McCormick,  16 
How.  480  {supra). 

But  wlicrc  a  patentee,  in  consideration  of  a  sum  of  money  paid  by  the  defendants,  discon- 
tinued a  suit  for  the  infringement  of  his  patent  for  covering  hams,  and  released  them  from  all 
damages  theretofore  sustained  by  the  infringement,  and  gave  them  the  privilege  of  putting  up 
hams  in  the  same  manner  they  had  before  done  for  the  rest  of  the  year,  with  the  understanding 
they  were  to  put  up  no  more  cemented  hams  after  the  year  without  the  patentee's  consent,  it 
was  holil,  in  an  action  by  the  patentee  for  the  violation  of  this  agreement,  that  the  measure  of 
his  damages  was  the  amount  his  hams  had  depreciated  in  price  after  the  expiration  of  the 
agreed  term  and  before  the  bringing  of  the  suit,  by  reason  of  the  influx  of  the  defendant's 
hams  into  the  market.     Billings  v.  Ames,  32  Missouri,  265. 

Trade-marks.  —  These  are  entitled  to  protection  in  equity,  and  their  violation  to  redress 
at  haw,  independently  of  legislation  ;  although,  as  in  New  York,  the  fraudulent  use  of  them  is 
sometimes  made  a  penal  offense  by  statute.  Laws,  1862,  c.  306;  3  Edmonds'  Stat,  at  Large, 
672.  But  they  may  be  properly  enough  referred  to  here.  For  the  infringement  of  a  trade- 
mark the  plaintiff  is  entitled  to  nominal  damages  without  proof  that  he  has  been  deprived  of 
any  particular  amount  of  profits  by  the  defendant's  unlawful  act.  Burnett  v.  Phalon,  21  How. 
Pr.  100  ;  Blofield  v.  Payne,  4  B.  &  Adol.  410.  But  no  definite  rule  seems  to  exist  for  the  ascer- 
tainment of  the  extent  of  the  actual  damage,  and  in  practice  the  plaintiff's  remedy  lies  rather 
in  the  equitable  "  security  for  the  future  "  than  the  legal  "  indemnity  for  the  past  "  afforded 
by  the  courts.  In  equity,  however,  an  order  is  made  in  practice  that  the  defendant  account 
for  the  sales  made  by  him  with  a  view  to  the  payment  of  the  illegal  profit  to  the  plaintiff. 

But  in  a  case  arising  under  Sir  Hugh  Cairn's  act  (21  and  22  Vict.  c.  27),  on  an  inquiry  as 
to  the  damages  sustained  by  the  alleged  violation  of  a  trade-mark,  the  vice-chancellor  (Sir 
W.  Page  Wood)  refused  to  assume  that  the  persons  who  bought  what  the  plaintiffs  averred 
were  inferior  articles  at  an  inferior  price,  would  necessarily,  had  they  not  done  so,  have  bought 
the  superior  articles  at  the  higher  pi'ice,  and  in  the  absence  of  other  proof,  held  that  the  plain- 
tiffs had  sustained  no  damage.    Leather  Cloth  Co.  v.  Hirschfield,  1  Law  E.  (Eq.  Cases)  299. 


CHAPTER    XXIV. 

OF   DAMAGES    WITH   REFERENCE   TO    PLEADING   AND    PRACTICE. 

Damages,  General  and  Special.  —  Special  Damages  to  be  averred  in  the  Declara- 
tion. —  Misjoinder  of  Counts  and  Assessment  of  entire  Damages.  —  Jurisdiction 
of  the  Courts  of  the  United  States  with  reference  to  Damages.  —  Statute  of 
Limitations;  Accord  and  Satisfaction.  —  Tender.  —  Eight  to  begin.  —  Bad 
Counts.  —  Verdict;  Award  of  Arbitrators.  —  Damages  with  regard  to  Costs. 

Averment  of  Damage.  —  The  most  important  remark  to  be 
made  on  this  part  of  our  subject,  is  as  to  the  necessity  of  dis- 
tinctly averring  in  the  declaration  the  damage  of  which  the 
plaintiff  complains.  Great  nicety  has  been  used  in  regard  to 
the  peculiar  mode  of  allegation ;  thus,  it  has  been  doubted 
whether  an  averment  was  sufficiently  clear  and  positive  if  pre- 
ceded by  the  word  "whereby,"  or  "thereupon,"  on  the  ground 
that  the  words  following  the  "  whereby  "  or  "  thereupon,"  could 
not  be  considered  as  containing  an  averment  of  matter  of  fact ^ 
but  merely  matter  of  conclusion  or  inference  drawn  from  the 
matters  previously  alleged.  But  it  now  seems  to  be  well  set- 
tled, that  where  the  allegation  following  such  a  word  as  "  there- 
upon "  or  "  whereby  "  is  clearly  intended  as  an  allegation  of  fact, 
the  matter  is  to  be  considered  averred  with  sufficient  directness ; 
the  word  "  thereupon  "  or  "  whereby  "  not  being  understood  as 
showing  that  the  proposition  following  such  word  is  intended 
to  be  stated  as  a  consequence  deducible  from  what  precedes, 
but  only  as  showing  the  time  at  which,  or  the  occasion  on  which 
that  which  follows  the  word  in  question  is  averred  to  have  taken 
place.*  But  if  the  averment  is  merely  one  of  a  legal  liability, 
it  is  well  established  that  such  an  averment  being  one  of  matter 
of  law,  will  not  supply  the  want  of  those  allegations  of  fact 
from  which  alone  the  court  could  infer  the  law  to  be  as 
[575]  stated ;  so  that  such  allegation  is  useless  when  the  decla- 
ration is  insufficient,  and  superfluous  when  sufficient 
without  it. 

Pleading  Special  Damages.  —  A  question  of  more  frequent 

*  Pryce  v.  Belcher,  3  M.  Gr.  &  S.  58  ;  Brown  v.  Mallet,  5  Ibid.  599. 


CH.   XXIV.]  SPECIAL   DAMAGES.  677 

occurrence  is,  as  to  the  necessity  of  averring  the  particular 
cause  and  extent  of  any  special  damage  for  which  the  plaintiff 
claims  redress.^ 

1  Mr.  Chitty's  satisfactory  statements  cited  in  the  text  (and  ante,  68),  of  the  distinction 
between  jreneral  and  special  damages,  leave  little  to  be  added.  All  lepal  damaj^es  must, 
whether  tlie  aetion  lie  in  contract  or  in  tort,  iidliiral/ij  result  from  the  act  or  defaidt  complained 
of;  and  altliou;;li  the  law  in  certain  cases  jicrmits  the  recovery  of  such  damaj^es  as  are  physic- 
ally secondary  or  consequential,  yet  they  must  in  lej::al  contcni])]ation  he  also  its  proximate  re- 
sult. Where  such  result  is  necessary,  or  is  lej,'-ally  imported  by  the  facts,  the  dama<rcs  are  gen- 
eral and  need  not  be  specially  set  forth  in  the  pleading  ;  otherwise  they  must.  In  the  one  case, 
the  statement  of  the  cause  of  actioti  sutticicntly  apprises  the  defendant  of  the  extent  of  the  claim. 
In  the  other,  h';:;al  justice,  in  order  to  enable  him  to  prepare  his  defense,  requires  the  furtlier 
averment  of  the  injurious  consequence.  Bristol  Manufacturinj^  Co.  v.  Gridley,  28  Conn.  201  ; 
Chand)crlain  v.  Porter,  9  Minn.  200  ;  McTavish  v.  Carroll,  13  Md.  429;  Warner  v.  Bacon,  8 
Gray  (Mass.),  397  ;  Baldwin  v.  Western  R.  R.  Co.  4  Gray,  333  ;  The  Town  of  Troy  v.  The 
Cheshire  Railroad  Company,  3  Post.  (N.  H.)  83;  Olmstead  v.  Burke,  25  111.  86;  Agnew  v. 
Johnson,  22  Pcnn.  St.  471  ;  Patten  v.  Libbey,  32  Me.  379  ;  Roberts  v.  Hyde,  15  La.  Ann.  51  ; 
Birchard  v.  Booth,  4  Wis.  67  ;  Solmes  v.  Lias,  16  Ab.  Pr.  R.  311.  But  where  in  an  action  in 
the  miture  of  tresjtass  for  the  wrongful  seizure  of  goods  which  was  the  gist  of  the  action,  al- 
though the  form  of  the  plaintiff's  plaint  was  limited  to  certain  heads  of  sjiecial  damage  which 
were  not  proved,  but  it  appeared  that  the  taking  was  wrongful,  the  plaintiff  was  held  by  the 
judicial  connnittee  of  the  Privy  Council  entitled  not  only  to  nominal  damages,  but  to  such  sub- 
stantial damage  as  the  jury  thought  adequate.  Doss  v.  Doss,  14  L.  T.  646.  See  Roberts  v. 
Grahams,  6  Wallace,  578,  where  the  subject  was  considered  in  an  opinion  pronounced  in  April, 
1868,  liy  the  Supreme  Court  of  the  United  States,  in  an  action  for  injuries  sustained  by  the 
plaintiff  from  the  neglect  of  the  defendant  (a  carrier  of  passengers  by  steamers)  to  furnish 
proper  accommodations  and  supplies,  and  in  which  it  was  held  that  under  an  allegation  of  facts 
whereby  the  plaintiff  was  "  subjected  to  great  inconvenience  and  injury,"  proof  might  be  intro- 
duced tending  to  prove  the  plaintiff's  illness,  and  the  negligence  of  the  defendant  causing  such 
illness ;  this  not  being  considered  by  the  court  to  be  special  damage.  This  decision  is  based 
on  that  of  Ward  i-.  Smith.  But  with  due  deference  to  the  learned  court,  it  must  be  doubted 
■whether  these  decisions  can  be  considered  as  anything  more  than  exceptions  to  the  general  cur- 
rent of  authorities.  Can  it  be  said  that  the  law  presumes  injury  as  a  necessary  consequence 
of  insufhciency  of  bed-clothing'? 

A  few  illustrations  in  addition  to  those  in  the  text,  pp.  575,  576,  577,  are  subjoined.  The 
law  presumes  damages  and  dispenses  with  their  averment  in  the  following  cases  :  For  injury 
to  a  plaintiff's  feelings  in  conseqixcnce  of  his  daughter's  seduction.  Phillips  v.  Hoyle,  4  Gray 
(Mass.),  568.  For  loss  of  profit  which  would  have  been  the  direct  result  of  work  done  at  the 
contract  price,  and  which  is  prevented  by  the  defendant's  wrongfiil  act.  Burrell  v.  New  York 
and  Saginaw  Salt  Co.  14  Mich.  34.  For  slander  of  the  plaintiff  in  either  a  public  or  private 
ofhcial  capacity.  Foulger  v.  Neweomb,  2  L.  R.  (Exch.)  32.  For  bodily  pain  and  suffering  in 
an  action  for  a  personal  injury.  Curtis  v.  The  Rochester  and  Syracuse  R.  Co.  18  N.  Y.  534  ; 
affirnung  20  Barb.  282  (ante,  83,  note  1).  See  also,  Swarthout  v.  N.  J.  Steamboat  Co.  46 
Barb.  222.  For  loss  of  time  and  expenses  incurred  in  preparation  for  marriage,  in  an  action 
for  breach  of  promise.  Smith  v.  Sherman,  4  Cush.  (Mass.)  408.  Damages  li-om  imprison- 
ment.    Garrison  v.  Pearse,  5  E.  D.  S.  (N.  Y.  C.  P.)  255. 

In  an  action  for  a  trespass  by  the  defendant's  horses  on  the  plaintiff's  land,  and  for  their 
kicking  and  injuring  the  plaintifl''s  horse,  it  is  not  necessary  to  aver  that  the  defendant's 
horses  were  accustomed  to  kick,  nor  that  the  defendant  knew  of  this  vice.  Dunckle  i'.  Kocker, 
11  Barb.  (N.  Y.)  387.  Nor  to  recover  special  damages  for  loss  of  sheep  by  disease  communi- 
cated by  other  sheep  warranted  by  the  defendant,  need  the  plaintiff  allege  that  the  defendant 
knew  that  the  sheep  so  warranted  were  to  be  placed  with  the  others.  Packard  r.  Slack,  32  Vt. 
(3  Shaw)  9.  In  an  action  of  covenant  for  breach  of  contract  in  not  building  a  hovise,  in  pay- 
ment for  which  the  plaintiff  was  to  have  conveyed  certain  premises,  no  statement  of  special 
damages  is  necessary  to  entitle  the  plaintiff  to  give  evidence  of  the  difference  in  value  bcween 
the  house  and  the  premises  which  constitutes  the  measure  of  damages.  Laraway  v.  Perkins, 
10  N.  Y.  371. 

In  the  following  cases  the  damages  are  special  and  must  be  alleged  :  For  loss  of  rents  in  ac- 
tions for  injury  to  real  estate.  Parker  v.  City  of  Lowell,  11  Gray  (Mass.),  353;  Adams  v. 
Barry,  10  Gray  (Mass.),  361.  In  an  action  for  damages  for  personal  injuries,  damages  from 
the  interruption  of  the  plaintiff's  oceui)ation,  and  deprivation  of  his  accustomed  means  of  earn- 
ing supi)ort.  Baldwin  v.  Western  R.  R.  4  Gray  (Mass.),  333.  For  a  bill  for  medical  services 
in  an  action  of  assault  and  battery.  O'Leary  v.  Rowan,  31  Mo.  117.  And  see  Ward  v.  Hawes, 
5  Minn.  440.  For  prospective  profits.  Cole  v.  Swanston,  1  Cal.  51.  For  profits  of  a  mill 
lost  l)y  the  obstruction  of  a  water-course.  Taylor  v.  Dustin,  43  N.  H.  493.  For  expenses  occa- 
sioned by  the  fraululent  imitation  of  trade-marks.     Dixon  v.  Fawcus,  3  L.  T.  R.  (N.  S.)  Q. 


678  PLEADING    AM)    PRACTICE.  [CH.    XXIV. 

"  Damages,"  says  Mr.  Chitty  *  "  are  either  general  or  special.  General  dam- 
ages are  such  as  the  law  implies  or  presumes  to  have  accrued  from  the  wrong 
com2:)lained  of.  Special  damages  are  such  as  really  took  place,  and  are  not  im- 
plied by  law ;  and  are  either  superadded  to  general  damages  arising  from  an  act 
injurious  in  itself,  as  where  some  particular  loss  arises  from  the  uttering  of  slan- 
derous words  actionable  in  themselves,  or  are  such  as  arise  from  an  act  indifferent 
and  not  actionable  in  itself,  but  injurious  only  in  its  consequences,  as  where  words 
become  actionable  only  by  reason  of  special  damage  ensuing.  It  does  not  appear 
necessary  to  state  the  former  description  of  damages  in  the  declaration  ;  because 
presumptions  of  law  are  not  in  general  to  be  pleaded  or  averred  as  facts.  But 
when  the  law  does  not  necessarily  imply  that  the  plaintiff  sustained  damage  by 
the  act  complained  of,  it  is  essential  to  the  validity  of  the  declaration  that  the  re- 
sulting damage  should  be  shown  with  particularity  ;  and  when  the  damages  sus- 
tained have  not  necessarily  accrued  from  the  act  complained  of,  and  consequently 
are  not  implied  by  law,  then,  in  order  to  prevent  the  surprise  on  the  defendant, 
which  might  otherwise  ensue  on  the  trial,  the  plaintiff  must  in  general  state  the 
particular  damage  which  he  has  sustained,  or  he  will  not  be  permitted  to  give 
evidence  of  it."  t 

So  in  the  Queen's  Bench,  in  an  action  on  the  case  for  an  ex- 
cesssive  distress,  it  was  held  that  no  mention  being  made,  in 
the  declaration,  of  the  sale,  either  for  damage  or  by  way  of  sub- 
stantive complaint,  the  plaintiff  could  only  recover  damages  in 
respect  to  the  detention  of  the  property,  and  not  for  the  sale.1: 

*  Chitty  on  Pleading,  vol.  i.  p.  458,  cited  in  in  an  action  on  the  covenant  against  incnm- 

Dumont  v.  Smith,  4  Denio,  319.     Vide  ante,  brances,  it  was  not  enough  to  aver  that  the 

67.     "  The  damages  sustained  are  matter  of  premises  were  incnmbcred,  but  that  the  decla- 

evidence,  and  need  not  be   alleged ;  nor   are  ration  must  set  out  the  extinguishment  of  the 

they  scarcely  ever   stated   but   in   a  general  incumbrance.     See  also,  Butler  u.  Kent,  19  J. 

manner."     Barruso  v.  Madan,  2  J.  R.  149.  R.  228  ;  and  Arrowsmith  v.  Gordon,  3  La. 

t  See  also,  Chitty  on  Pleading,  vol.  i.  p.  370,  Ann.  R.  105. 

ef  se^.,  same  subject.     See  also  (ante,  185),  De  %  Thompson  v.   Wood,  4  Q.   B.  493.     In 

Forest  v.  Leete,  16  J.  R.  122,  where  held,  that  Driggs  v.  Dwight,  17  Wend.  71,  in  New  York; 

B.  693  [ante,  573,  note  1).  Special  damage  in  trover  and  replevin.  Park  v.  McDaniels,  37  Vt. 
594;  Stevenson?;.  Smith,  28  Cal.  102;  Schoficld  v.  Ferrers,  46  Penn.  438.  See  Clements  u. 
Glass,  23  Geo.  395.  (Aliter,  however,  it  is  said  as  to  outi-age  and  wrong  attending  the  taking, 
which  belong  to  the  wrongful  act  itself.  Ibid.)  For  loss  of  health  from  the  breach  of  a 
promise  to  marry.  Bedell  v.  Powell,  13  Barb.  (N.  Y.)  183.  Damages  from  the  breach  of  a 
contract  which  is  a  material  enlargement  of  that  originally  declared  on.  Hill  v.  Smith,  34 
Vt.  545  ;  32  Vt.  433.  Damage  to  an  author  from  the  disparagement  of  a  copyrighted  work. 
Swan  V.  Tappen,  5  Cush.  (Mass.)  104.  In  Indiana,  in  an  action  of  trespass  for  killing  a 
mare,  damages  for  nursing  and  feeding  two  colts  she  had  been  suckling,  and  for  care  and 
attention  of  the  mare's  wound,  not  having  been  alleged,  were  held  not  recoverable.  Tea- 
garden  V.  Hetfield,  11  Ind.  522.  In  an  action  by  an  unmarried  woman  against  a  carrier  for 
personal  injury  from  his  negligence,  her  diminished  chances  of  marriage  must  be  specially 
alleged  to  entitle  her  to  an  enhancement  of  the  damages  on  that  ground.  Hunter  v.  Stewart, 
47  Maine,  419.  Where  damages  beyond  legal  interest  for  non-payment  of  a  note  at  maturity 
are  allowed  by  law,  as  a  penalty,  they  cannot  be  recovered  unless  specially  averred.  Wil- 
son V.  Dean,  10  Iowa  (2  With.),  432.  For  the  rule  in  slander  and  libel  suits,  see  ante,  539, 
and  note. 

The  new  codes  of  practice  (see  page  41,  note  1)  require  the  focts  constituting  the  jjlaiiuilf's 
claim  or  cause  of  action  to  bo  stated,  and  therefore,  where  under  those  systems  the  right  to 
maintain  tlie  action  depends  on  the  fact  tliat  certain  damages  have  been  sustained,  such  dam- 
ages must  be  averred.     See  Fagen  v.  Davison,  2  Duer  (N.  Y.),  153. 


CH.    XXIV.]  SPECIAL   DAMAGES.  679 

So  in  New  York,  in  an  action  on  the  case,  in  which  the  plain- 
tiff declared  against  the  defendant  for  placing  a  quan- 
tity of  lime,  sand,  and  other  building  material,  opposite  [576] 
to  his  store,  so  that  the  free  passage  to  it  was  inter- 
rupted, and  the  dust  and  dirt  of  the  materials  blew  into  his 
store  and  damaged  his  goods,  it  was  held,  that  proof  that  cus- 
tomers were  prevented  from  frequenting  the  store,  and  that  a 
tenant  who  occupied  it,  left  it  in  consequence  of  the  nuisance, 
where!.)}''  it  remained  empty,  was  inadmissible,  because  not 
alleged  in  the  declaration  as  special  damage.  "  When  the  dam- 
ages," said  the  Supreme  Court,  "  actually  sustained  do  not  nec- 
essarily arise  from  the  act  complained  of,  and  consequently  are 
not  implied  by  law,  in  order  to  prevent  surprise  to  the  defend- 
ant the  plaintiff  must  state  in  his  declaration  the  particular 
damage  which  he  has  sustained,  or  he  will  not  be  permitted  to 
give  evidence  of  it  upon  the  trial.     Here  there  is  no  claim  for 

damages,  in  the  declaration,  for  the  loss  of  customers 

The  loss  of  the  tenant  and  the  consequent  loss  of  the  rent, 
ought  to  have  been  specially  alleged  in  order  to  entitle  the 
plaintiff  to  have  proved  them  as  damages."* 

So  in  a  still  more  recent  case  in  the  same  State,  in  an  action 
of  trespass  on  the  case,  the  declaration  alleged  that  the  defend- 
ant in  consideration  of  the  sale  by  the  plaintiff  to  him  of  cer- 
tain premises  in  the  city  of  New  York,  covenanted  that  he 
would  erect  on  them  a  brick  dwelling-house,  and  would  not 
erect  on  them  any  building  to  be  occupied  in  any  manner  that 
woidd  be  a  nuisance  to  the  vicinity  of  the  premises.  The  dec- 
laration then  proceeded  to  aver,  that  the  defendant  had  not 
erected  a  brick  dwelling-house,  but  had  permitted  a  bake-house 
to  be  erected  on  the  premises,  and  suffered  it  be  occupied  in  a 
manner  that  was  a  nuisance  to  the  vicinity  of  the  premises. 
There  was  no  allegation  of  special  damage,  but  the  declaration 
concluded  generally,  to  the  damage  of  the  plaintiff  $6,000.  On 
the  trial,  the  plaintiff's  counsel  offered  to  prove  actual  damage 
sustained  by  him  in  the  depreciation  of  the  value  of  premises 
owned  by  him,  adjacent  to  the  lot  in  question,  occasioned  by 
the  erection  of  the  bake-house.  But  the  evidence  was  excluded 
on  the  ground  of  the  want  of  any  allegation  of  special  damage 
in  the  declaration ;  and  the  judge  who  tried  the  cause,  held 
that  the  plaintiff  could  only  recover  nominal  damages. 
By  consent,  a   nonsuit  was   ordered,  and  on   motion  to  [577] 

and  in  Ward  v.  Smith,  11  Price,  19,  in  Eng-  mated  that  an  averment  of  consequential  dam- 
land,  —  s]K'cial  damafie  was  allowed,  though  age,  though  too  remote  and  ineffectual,  is  no 
not  stated  in   the  declaration.     In  Leiand  v.  ground  of  demurrer. 
Tousey,  6  Hill,  328  (New  York),  it  was  iuti-        *  Squier  v.  Gould,  14  Wend.  159. 


680  PLEADING    AND    PRACTICE.  [CH.    XXIV. 

set  this  aside,  the  Supreme  Court  held  the  decision  right. 
"  Suppose,"  said  Cady,  J.,  "  the  bake-house  has  been  so  occu- 
pied as  that  it  has  been  a  nuisance,  how  has  it  damnified  the 
plaintiff?  The  declaration  does  not  show  that  he  has  been 
annoyed  by  the  heat  and  smoke  issuing  from  the  bake-house, 
or  that  he  has  any  property  which  has  been  lessened  in  value 
by  it."* 

So  in  Alabama,  it  has  been  held  that  in  an  action  brought  by 
a  firm  for  a  malicious  prosecution,  proof  of  special  damage  aris- 
ing from  loss  of  reputation,  credit,  or  business,  cannot  be  given 
unless  it  is  specially  averred  in  the  declaration.!  -^  And  the 
principle  has  been  recognized  in  South  Carolina.^ 

In  a  case  in  New  York,  where  the  plaintiff  sued  the  owner  of 
a  steamboat  for  not  towing  a  canal-boat  according  to  contract, 
he  alleged  and  proved  as  special  damage  the  expenses  of  his 
detention ;  it  was  held  that  the  plaintiff  could  not  go  further 
and  ask  for  general  damages,  there  being  no  proof  of  any.§ 

Mode  of  Averment.  —  The  allegation  of  damage  is  only 
required  to  be  of  the  fact  as  it  exists  in  legal  contemplation.^ 
So  an  allegation  that  the  plaintiff  has  been  put  to  great  ex- 
pense, will  be  satisfied  by  proof  that  he  has  incurred  a  liability 

to  pay.ll 

Different  Counts.  —  An  important  question  in  regard  to  the 
subject  of  damages,  as  connected  with  pleading,  is  that  in  re- 
lation to  the  misjoinder  of  counts,  and  the  assessment  of  dam- 
ao-es  thereon ;  but  as  this  matter  belono-s  also  to  the  head  of 
practice,  it  will  be  considered  under  that  branch  of  our  sub- 
ject. 

Matters  Occurring  after  Suit.  —  We  have  already  had  oc- 
casion, when  treating  of  the  rights  of  parties  with  reference  to 
the  state  of  things  at  the  commencement  of  the  suit,  to  speak 
of  the  necessity  of  pleading  specially  matters  arising  after  suit 
brought.^ 

*  Bogartv.  Burkhalter,  2  Barb.  S.  C.R.  525  ;  r   f  Rowand  v.  Bellinger,  3  Strobh.  373. 

and   as   to   allegation   of  special   damage,  iu  §  Vanderslice  v.  Newton,  4  Comstuck,  130. 

trover,  vide  ante,  475,  et.  seq.  \\  Jlichardson  v.  Chason,  10  Q.  B.  R.  756. 

t  Donnell  v.  Jones,  13  Ala.  (N.  S.)  490.  1[  Antf,  109. 

1  So  in  a  suit  for  false  imprisonment,  the  plaintiff,  who  was  a  claim  collector,  could  not 
prove  as  special  damages,  that  he  had  been  twice  applied  to,  to  go  out  of  the  country  while  under 
bonds  not  to  do  so.  This  damage  had  not  been  averred,  but  even  if  it  had  been,  it  seems  that 
the  evidence  would  have  been  inadmissible.     Fuller  v.  Bouker,  11  Mich.  204. 

^  But  this  rule  of  the  common-law  practice  is  changed  by  the  new  codes  of  procedure,  which 
require  the  statement  of  the  actual  facts,  and  not  merely  the  averment  of  their  legal  effect. 
Garvey  v.  Fowler,  4  Sandf.  665. 


CH.    XXIV.]  JOINT   TRESPASS.  681 

Damages  need  not  be  Precisely  Stated.  —  In  regard  to  the 
amount  of  damages  to  be  averred,  it  is  only  necessary  to  lay 
them  so  high  as  to  cover  the  injury ;  for  no  recovery  can  be 
had  beyond  the  amount  in  the  declaration.  It  w^as,  indeed, 
anciently  held,  both  in  actions  of  indebitatus  assumpsit  and  insimul 
comjmt assent,  that  i\\Q  plaintiff  could  not  recover  any  less  amount 
of  damages  than  the  precise  sum  laid  in  the  declaration.*  But 
it  is  now  well  settled  otherwise ;  and  thus,  even  in  an  action  on 
a  policy  of  insurance  averring  a  total  loss,  a  recovery  may  be 
had  for  a  partial  loss.f 

No  Damages  Eecoverable  beyond  the  Ad  Damnum.  — 
But  the  rule  the  other  way  is  adhered  to  do  with  se-  [578] 
verity.^  If  the  jury  assess  the  damages  at  a  sum  beyond 
the  amount  laid  in  the  declaration,  the  plaintiff  must  remit  the 
excess  and  take  judgment  only  for  the  residue.  If  judgment 
be  entered  for  the  whole  amount  of  damages  found  by  the  jury, 
it  is  error4  Where  the  plaintiff's  particulars  of  demand  stated 
the  action  to  be  brought  for  one  year's  salary,  or  damages  for 
the  dismissal  of  the  plaintiff  before  the  expiration  of  the  year, 
it  was  held  sufficient  to  let  in  a  claim  on  a  quantum  meruit  for 
work  done  during  a  portion  of  the  year,  it  not  appearing  that 
the  defendant  was  misled.§ 

Joint  Trespasses.  —  In  many  cases  of  joint  trespass  and 
several  damages  given,  the  plaintiff  is  permitted  to  enter  one 
joint  judgment  against  all,  assuming  the  largest  sum  assessed 
against  any  one  as  the  damages  against  all,  de  melioribus 
damnis.\\  ^ 

*  Sayer  on  Damages,  ch.  x.  p.  43,  et  seq. ;  the  conclusion  of  a  declaration,  and  of  each 

Bagnall  v.  Sacheverel,  Cro.  Eliz.  292  ;  Rams-  count,  is  cured  by  the  verdict,  when  the  decla- 

den's  case,  Clayton,  87.  ration  contains  an  allegation  of  indebtedness 

t  Chitty  on  Pleadings,  vol.  i.  p.  371  ;  Mar-  for  a  greater  amount  than  that  of  the  judg- 

shall  un  Insurance,  629.  ment.     In  Mississippi,  it  is  no  objection  to  a 

X  Hoblins  v.  Kimble,  1  Bulst.  49  ;  Cheveley  verdict  that  it  is  for  more  than  the  amount  in- 

V.  Morris,  2  W.  Black.  1300;  Curtiss  v.  Law-  dorsed  on  the  writ,  if  it  correspond  with  the 

rence,  17  Johns.  Ill  ;  Dox  i'.  Dev,  3  Wend,  amount  laid  in  the  declaration.     Williams u. 

356  ;  Fish  v.  Dodge,  4  Denio,  311  ;"  Fowlkesu.  Williams,  11  Smedes  &  M.  393. 

Webber,  8  Humphreys,  530  ;  David  v.  Conard,  §  Harris  v.  Montgomery,  15  .Tur.  757. 

1    Greene   (Iowa),   336.     In   this   last-named  1|  Halsey  v.  Woodruff,  9  Pick.  555;  Fuller  u. 

State  (luwa),  the  omission  to  aver  damages  at  Chamberlain,  11  Met.  503.' 

1  The  New  Jersey  Flax  Co.  v.  Mills,  2  Dutcher  (N.  J.),  60;  Cameron  v.  Boyle,  2  Greene 
(Iowa),  154. 

2  So  where  a  joint  tort  had  been  committed,  and  the  referee  found  that  the  plaintiffs  had  been 
damaged  by  one  of  the  defendants  to  the  amount  of  $600,  and  by  the  other  to  the  amount  of 
$150,  it  was  held  by  the  Superior  Court  of  New  York  that  the  judgment  was  rightly  entered 
against  both  in  the  larger  amount.  O'Shea  v.  Kirker,  4  Bosw.  120 ;  see  Bell  v.  Morrison,  27  Miss. 
68  ;  Hair  I'.  Little,  28  Ala.  236;  Clark  v.  Beales,  15  Barb.  (Ark.)  452.  In  an  action  of  tort  the 
damages  are  not  divisible.  There  can  be  but  one  verdict  and  for  one  amount  against  all  of 
those  found  guilty.    All  are  principals ;  and  each  defendant  is  liable  for  all  the  damages  sus- 


G82  PLEADING    AND    PRACTICE.  [CH.    XXIV. 

Plea  to  the  Damage.  —  There  has  been  much  discussion  how 
far  a  plea  can  be  put  in  to  the  damage  only ;  ^  and  the  reason- 
able rule  appears  to  be  that  such  a  plea  is  bad,  unless  the  dam- 
age is  so  essentially  the  cause  of  action  that  without  it  the  suit 
could  not  be  maintained.*  ^ 

Allegation  of  Consequential  Damages.  —  As  to  demurrer,  it  is 
no  ground  of  demurrer  to  an  entire  breach  in  an  action  of  cove- 
nant, that  certain  consequential  damages  alleged  are  not  recov- 
erable. If  the  plaintiff  is  entitled  to  recover  for  any  damage, 
it  is  sufficient  to  support  the  breach.f 

Jurisdiction  of  United  States  Courts  as  Controlled  by 
Amount.  —  An  important  question  as  to  damages  with  reference 
to  pleading,  is  presented  in  the  United  States,  in  regard  to  the 
jurisdiction  of  those  courts  which  are  prohibited  from  taking 
cognizance  of  any  cases  unless  a  certain  pecuniary  amount  is  in 
controversy:  as  in  regard  to  the  Circuit  Courts,  which  do  not 
usually  exercise  their  jurisdiction  over  cases  involving  less  than 
five  hundred  dollars ;  and  the  Supreme  Court  of  the  United 

States,  the  appellate  jurisdiction  of  which  in  like  manner 
[579]  commences  at  the  sum  of  two  thousand  dollars.     And  it 

has  been  frequently  decided  "  that  the  damages  claimed 

*  Robinson  v.  Marchant  7  Q.  B.  918 ;  Wil-        t  Amory  v.  Brodrick,  5  B.  &  Aid.  712. 
by  V.  Eltson,  8  Man.  Gr.  &  S.  142. 


tained  without  regard  to  different  degrees  or  shades  of  guilt.  Beal  v.  Finch,  1  Kern.  (N.  Y.) 
128.  So  where  all  the  defendants,  in  an  action  charging  them  with  a  joint  trespass,  are  defaulted, 
and  the  case  referred  to  an  assessor  to  assess  the  damages,  they  are  all  liable  for  the  whole  dam- 
age actually  sustained  by  the  plaintifl",  although  it  appears  by  the  evidence  before  the  assessor 
that  one  of  them  did  not  participate  in  the  trespass.  Gardner  v.  Field,  1  Gray  (Mass.),  151. 
But  the  plaintiff  may,  after  verdict  against  all  the  defendants,  enter  a  nolle  prosequi  against  some, 
and  take  judgment  against  the  others.  Hardy  v.  Thomas,  23  Miss.  544  ;  Conner  v.  Cockerill, 
4  Cr.  C.  C.  R.  3.  See  post,  584,  note.  But  where  cows  belonging  to  several  owners  are  found 
in  the  garden  of  an  individual,  committing  a  trespass,  each  owner  is  liable  for  the  damage  done 
by  his  own  cow,  and  for  no  more;  and  in  the  absence  of  all  proof  as  to  the  amount  of  damage 
done  bv  each  cow,  the  law  will  infer  that  the  cattle  did  C(jual  damage.  Partenheimer  v.  Van 
Order,'20  Barb.  (N.  Y.)  479.     And  see  Bulkley  v.  Smith,  2  Duer  (N.  Y.),  261. 

1  In  New  York,  the  customary  statement  in  the  complaint  of  the  amount  of  damage  sus- 
tained by  plaintiff  is  held,  under  the  Code  of  Procedure,  not  to  be  traversable;  and  it  is  there- 
fore not  admitted  by  a  failure  to  answer.  The  plaintiff,  on  default,  must  prove  his  damages, 
or  he  can  recover  nominal  damages  only.  Hackctt  v.  Richards,  3  E.  D.  Smith's  C.  P.  R.  13, 
(reversed  on  another  point,  13  N.  Y.  148) ;  Connoss  v.  Mier,  2  E.  D.  S.  314.  Such  is  the  rule 
also  in  Kentucky  and  New  Hampshire.  Daniel  v.  Judy,  14  B.  Monr.  (Ky.)  393,  and  Wilson 
V.  Wilson,  5  Fort.  (N.  H.)  229.  The  jury  cannot,  after  a  default,  find  for  the  defendant.  Ellis 
V.  The  State,  2  Ind.  262.  They  must  find  at  least  one  mill  in  damages.  Frazier  v.  Lomax,  1 
Cr.  C.  C.  R.  328. 

'■^  See  Reindel  v.  Schell,  4  Jur.  (N.  S.)  310  ;  27  L.  J.  (C.  P.)  146 ;  Saltus  v.  Kipp,  2  Abbott's 
(N.  Y.)  Pr.  R.  382;  Hopple  v.  Higbee,  3  Zabr.  (N.  J.)  342.  But  matter  which  if  ])leaded 
would  have  barred  the  action,  cannot  as  a  general  rule  be  given  in  evidence  unless  pleaded.  So 
in  trover,  Finch  v.  Blount,  7  C.  &  P.  478.  In  assault  and  battery,  Watson  v.  Christie,  2  B. 
&  P.  224.     In  trespass.  Day  v.  Porter,  2  M.  &  Rob.  151. 


CH.    XXIV.]  ACCORD    AND    SATISFACTION.  683 

in  the  writ  and  declaration  are  the  sum  in  controversy."  ^  Even 
if  the  plaintiff'  recover  less  than  §500,  it  cannot  affect  the  juris- 
diction of  the  court,  if  a  greater  sum  be  claimed  in  his  writ.* 
But  on  application  to  remove  a  suit  from  the  State  court,  it  has 
been  intimated  that  the  amount  in  the  declaration  is  not  con- 
clusive, and  that  the  plaintift''s  affidavit  may  be  received  to 
controvert  it.f 

On  a  writ  of  error,  though  the  verdict  in  the  Circuit  Court  be 
for  less  than  §2,000,  but  more  than  that  sum  is  claimed  in  the 
declaration,  if  the  plaintiff"  bring  error,  the  Supreme  Court  has 
jurisdiction;  for  the  judgment  may  be  reversed,  and  the  whole 
amount  claimed  recovered.t  But  this  is  not  so  if  the  writ  of 
error  is  brought  by  the  defendant.§  In  such  case  the  amount 
in  controversy  is  to  be  decided  by  the  sum  in  controversy  at  the 
time  of  the  judgment,  and  not  by  any  subsequent  additions 
thereto,  such  as  interest.  The  court  cannot  look  beyond  the 
time  of  the  judgment,  in  order  to  ascertain  whether  a  writ  of 
error  lies  or  not.|| 

And  where  the  demand  is  not  for  money,  and  the  nature  of 
the  action  does  not  require  the  value  of  the  thing  demanded  to 
be  stated  in  the  declaration,  the  recognized  practice  of  the  courts 
of  the  United  States  has  been  to  allow  the  value  to  be  given  in 
evidence.  Tl" 

Statute  of  Limitations.  —  Accord  and  Satisfaction.  —  When- 
ever it  becomes  important  to  set  up  the  defense  of  the  statute 
of  limitations  to  claims  for  damages,  as  in  cases  of  nuisances  of 
long  standing,  it  is  necessary  that  it  should  be  pleaded,  other- 
wise it  will  be  disregarded.**  It  belongs  to  this  branch 
of  our  subject  to  mention  that  accord  and  satisfaction  by  [580] 
parol,  or  by  writing  not  under  seal,  cannot  be  interposed 

*  Gordon  v.  Longest,    16   Peters,   97    and  v.  Mauro,  2  Pet.  243 ;  Scott  u.  Lunt's  Adm'r, 

104.  6  Peters,  349  ;  United   States  v.  M'Daniel,  7 

t  People  V.  Judges  of  N.  Y.  C.  P.  2  Denio,  Peters,  1. 

197.  II  Knapp  v.   Banks,   2   Howard,    73.      See 

J  Gordon  v.  Ogden,  3  Peters,  33.  also,  Wilson  v.  Sandford,  10  How.  99. 

§  Smith  V.  Honey,  3  Peters,  469.     See  also,  T  Ex-parte,  Bradstreet,  7  Peters,  634  ;  United 

Wilson  V.  Daniel,  3  Dull.  401  ;  United  States  States  v.  Brig  Union,  4  Cranch,  216  ;  Course 

V.  M'Dowell,  4  Cranch,  316  ;  Course  v.  Stead's  v.  Stead's  Ex'r,  4  Dall.  22. 

Ex'r,  4  Dall.  22  ;  Brown  v.  Barry,  3  Dall.  365  ;  **  Waggoner  v.  Jcrmaine,  3  Denio,  306  ;  2 

United  States  i-.  Brig  Union,  4  Cranch,  216  ;  Saunders,  66,  note  3;  1    Chitty  PI.  ed.  1837, 

Peyton  j;.  llobertson,  9  Wheat.  527  ;  Ritchie  517,  note. 

^  In  actions  of  tort,  the  damages  claimed  usually  determine  the  jurisdiction  as  to  amount. 
Aulick  V.  Adams,  12  B.  Monr.  (Ky.)  104.  But  under  the  Indiana  Code,  the  damages  laid  in 
the  conclusion  of  the  complaint  do  not  enlarge  the  claim  of  the  plaintiff  so  as  to  defeat  the  ju- 
risdiction of  a  court  limited  in  jurisdiction  to  a  specified  amount,  if  it  appear  by  the  statement 
of  the  plaintiff 's  cause  of  action  that  he  cannot  be  entitled  to  recover  as  much  as  the  limit 
within  which  the  jurisdiction  is  confined.  Collins  v.  Shaw,  8  Ind.  516.  The  sum  laid  limits 
but  does  not  enlarge  the  plaintiff's  claim.    Epperly  v.  Little,  6  Ind.  344. 


684  PLEADING    AND    PRACTICE.  [CII.    XXIV. 

as  a  bar  to  a  debt  by  record,  or  by  specialty,  where  the  debt 
arises  on  the  deed  •  but  it  may  be  set  up  as  a  bar  to  damages 
founded  on  the  breach  of  a  specialty.* 

Tender.  —  Of  the  rules  of  pleading  bearing  on  the  defense, 
one  of  the  most  important  is  that  which  relates  to  tender.  A 
tender  may  be  made  and  pleaded,  where  the  demand  is  in  the 
nature  of  a  debt,  when  the  sum  due  is  either  certain  or  capable 
of  being  made  certain  by  mere  computation ;  but  it  is  not 
allowed  when  the  action  is  for  unliquidated  damages,  the  amount 
of  which  is  to  be  determined  by  the  exercise  of  discretion  by  a 
jury.f  1 

Right  to  Begin.  —  If  the  rules  of  pleading  are  correctly  fol- 
lowed, the  only  remaining  questions  in  regard  to  damages  are 
those  which*  come  properly  under  the  head  of  practice.  The 
most  important  of  these  is  that  which  presents  itself  at  the  trial 
of  the  cause  in  regard  to  the  right  to  begin,  as  it  is  called  ;  or, 
in  other  words,  in  what  cases  does  the  necessity  of  proving  dam- 
ages give  the  plaintiff  a  right  to  open  and  close  the  cause,  where 
the  affirmative  of  the  issue  is  with  the  defendant.^  The  impor- 
tance of  this  subject  has  been  recently  clearly  stated  by  a  judge 
of  great  experience.  "  It,  unhappily,  still  remains  of  great  im- 
portance to  the  administration  of  justice  by  a  jury  that  the  right 
to  begin  should  be  correctly  adjudicated  on ;  for  all  who  are 
conversant  with  those  trials,  at  Nisi  Prius,  in  which  the  address 
of  counsel  may  materially  affect  the  result,  well  know  that  the 
issue  often  ultimately  dejDcnds  on  the  decision  which  party  has 
a  right  to  begin."  $ 

In  England,  it  has  at  length  been  settled  by  a  rule  of  all  the 
judges,  that  the  plaintiff  shall  begin  in  all  actions  for  personal 
injuries,  libel,  and  slander,  though  the  general  issue  may  not  be 
pleaded,  and  the  affirmative  be  on  the  defendant.     In  actions  of 

*  Blake's  case,.  6  Rep.  43;  Bac.  Ab.  Accord  liff,  19  Verm.  592;  Holmes  v.  Woodruff,  20 

and  Satisfaction ;  Alden  v.  Blague,  Cro.  Jac.  Verm.  97. 

99  ;  Kaye  v.  Waghorne,  1  Taunt.  428 ;  Strang  t  Pollock,  C.  B.,  in  Ashby  v.  Bates,  15  M. 

V.  Holmes,  7  Cowen,  224 ;  Mitchell  v.  Hawley,  &  Wels.  589,  where  a  new  trial  was  ordered 

4  Dcnio,  414.  because  of  an  erroneous  ruling  at  Nisi  Prius 

t  Chitty  on  Contracts,  793;  Green  v.  Shurt-  as  to  the  right  to  begin.     See  also.  Booth  v. 

Millns,  15  M.  &  Wels.  669. 

^  To  constitute  a  valid  tender,  the  money  must  be  produced  and  actually  offered  to  the 
creditor,  unless  he  dispenses  with  it  by  a  positive  act  or  declaration.  It  is  not  enough  that 
the  debtor  has  the  money  in  his  pocket  or  elsewhere,  without  showing  it,  and  informs  the 
creditor  he  is  ready  to  pay,  without  offering  to  do  so.  Strong  v.  Blake,  46  Barb.  (N.  Y.) 
227. 

2  As  to  the  right  to  open  and  close,  see  In  re  Mickelthwaite,  33  Eng.  L.  &  E.  410;  Day  v. 
Woodworth,  How.  363 ;  Chamberlain  v.  Gaillard,  26  Ala.  504. 


CH.    XXIV.]  ENTIRE   OR    SEVERAL   DAMAGES.  G85 

contract,*  however,  the  subject  is  still  involved  in  uncer- 
tainty.    An  effort  has  been  made  to  make  the  right  de-  [581] 
pend  on  whether  the  plaintiff  goes  for  substantial  relief 
or  for  nominal  damages  ;  but  the  point  does  not  appear  to  have 
been  ^^et  authoritatively  settled.! 

"  In  this  country,"  says  Mr.  Greenleaf,  in  his  very  valuable  work 
on  Evidence,  "  it  is  generally  deemed  a  matter  of  discretion,  to 
be  ordered  by  the  judge  at  the  trial  as  he  may  think  most  con- 
ducive to  the  administration  of  justice ;  but  the  weight  of 
authority  as  well  as  the  analogies  of  the  law,  seem  to  be  in  favor 
of  giving  the  opening  and  closing  of  the  cause  to  the  plaintiff, 
whenever  the  damages  are  in  dispute,  unliquidated,  and  to  be 
settled  by  the  jury  upon  such  evidence  as  may  be  adduced,  and 
not  by  computation  alone."  t  It  appears  to  me  that  this  lan- 
guage ascribes  a  greater  discretion  to  the  judge  trying  the  cause, 
and  would  lead  to  greater  laxities,  than  are  in  fact  allowed.  In 
Massachusetts,  it  has  been  said,  citing  with  approbation  the 
language  of  Lord  Denman,§  "Wherever,  from  the  state  of  the 
record  at  Nisi  Prius,  there  is  anything  to  be  proved  by  the  plain- 
tiff, whether  as  to  the  facts  necessary  for  his  obtaining  a  verdict, 
or  as  to  the  amount  of  damages,  the  plaintiff  is  entiiled  to  begin. 
But  when  the  onus  prohandi  lies  on  the  defendant,  he  is  entitled 
to  begin."  So  in  the  same  State,  when  in  trespass  the  defend- 
ant pleads  soil  and  freehold  in  himself  without  any  other  plea, 
and  issue  is  joined  thereon,  the  right  of  opening  and  closing  the 
argument  before  the  jury  belongs  to  the  defendant.||  So,  in  the 
same  State,  on  the  hearing  before  a  jury  to  re-assess  damages 
for  taking  land  for  a  railroad,  the  party  claiming  damages  has 
the  right  to  open  and  close,  and  a  contrary  ruling  at  the  trial 
was  held  erroneous.^  , 

Entire   or   Several  Damages.  —  Joinder   of   Good   and  Bad 
Counts.  —  We  have  already  said  that  an  important  question  may 
arise  as  to  the  assessment  of  entire  or  several  damages.** 
The  jury  may  assess  entire,  or  distinct  damages  on  each  [582] 
of  the  counts,  when  separate  injuries  have  been  proved. 
If  distinct  damages  be  assessed,  judgment  may  be  given  on  either 

*  Greenleaf  on  Evidence,  §  76,  3d  ed.  149 ;  |  Greenleaf  on  Evidence,  §  76,  150,  3d  ed. 

^Mercer  v.   Wliall,  9  Jur.   576,  and,  5    Q.  B.  where  cases  will  be  found. 

447.  §  In  Mercer  v.  Wliall,  5  Adol.  &  Ellis,  44  7. 

t  Chapman  v.  Rawson,  8  Q.  B.  673  ;  Can-  i|  Davis  v.  Mason,  4  Pick.  156. 

nam  v.  Farmer,  2  Car.  &  Kir.  747.     In  the  i[  Conn.  River  R.  R.  v.  Clapp,  1  Gushing 

Exchequer,  the  crown  has  the  right  to  a  gen-  R.  559. 

eral  reply  in  all  cases  where  the  crown  has  an  **  Ante,  578. 
interest.     Chandos  v.  Comm'r  of  Inland  Rev- 
enue, 20  Law  J.  Rep.  (N.  S.)  Exch.  269. 


686  PLEADING    AND    PRACTICE.  [CH.    XXIV. 

of  the  counts  ;  but  if  the  jury  find  entire  damages  on  all  the 
counts,  the  judgment  must  be  entire ;  ^  and  in  this  case,  if  one 
of  the  counts  be  insufficient,  judgment  will  be  arrested,  or  a  writ 
of  error  be  sustainable.*  This  may  be  where  a  good  count  is 
joined  with  a  bad  count ;  or  where  a  bad  assignment  of  breaches 
is  joined  with  good  ;  or  where  counts,  though  good  in  them- 
selves, are  improperly  joined  ;  or  where  a  single  count  contains 
good  and  bad  causes  of  action ;  and  in  those  cases,  if  general 
damages  are  assessed,  the  practice  has  been  different.  If  the 
verdict  can  be  amended  or  applied  to  the  good  counts,  this  in 
some  cases  will  be  done.^j'  And  it  has  been  said  in  England  to 
be  a  settled  rule  that,  "  if  the  same  count  contains  demands  for 
one  of  which  the  action  lies  and  not  for  the  other,  all  the  dam- 
ages shall  be  referred  to  the  good  cause  of  action ;  though  it 
would  be  otherwise  if  they  were  in  separate  counts."  $ 

But  if  the  verdict  cannot  be  awarded  or  applied  to  the  good 
counts,  then  the  question  is  whether  the  cause  should  be  tried 
again,  or  the  judgment  entirely  arrested.  In  some  cases  the 
judgment  has  been  arrested  ;§  and  this  still  seems  the  practice 

in  England,  where  counts  good  in  themselves  are  im- 
[583]  properly  joined,  which  is  in  truth  a  misjoinder  of  causes 

of  action; II  but  where  good  counts  are  joined  with  bad, 
the  rule  now  seems  to  be  that  a  new  trial  will  be  awarded.^ 
Such  seems  the  well-settled  system  in  England ;  but  in  some 
parts  of  our  Union  a  more  rational  rule  has  been  adopted.  In 
Connecticut,  the  Supreme  Court  has  recently  said,  "  that  if  there 
be  good  and  bad  counts,  or  good  and  bad  matter  in  the  same 
count,  the  presumption  in  our  courts  is,  that  damages  are  given 

*  Chitty  on  Pleadings,  vol.  i.  p.  447;  Hamble-  v.  Vedder,  14  Wend.  165 ;  Backus  v.  Richard- 
ton  V.  Veere,  2  Saunders,  196 ;  Eddpws  v.  Hop-  son,  5  J.  R.  476. 

kins,  1  Doug.  376 ;  Grant  v.  Astle,  2  Doug.  7.52.  t  Chitty  on  Pleadings,  vol.  i.  p.  448. 
In  this  case  Lord  Mansfield,  while   he  main-  |  Doe  &  Lawrie  v.  Dyeball,  8  B.  &  C.  70 ; 
tained  the  doctrine,  declared  the  rule  "  incon-  Kitchenman  v.  Skeel,  3  Exch.  49. 
venient,  ill-founded,  and  absurd,"  and  called  §  Com.    Dig.    Damages,  E.    .5  ;   Comer  v. 
attention  to  the  fact,  that  it  did  not  apply  to  Shew,  4  Mees.  &  W.  163.     Where  the  plain- 
criminal  prosecutions.     But  in  O'Connell  v.  tiff  declares  upon  a  contract  consisting  of  sev- 
Reginara,  9  Jurist,  25,  the  same  principle  was  eral  parts,  and  assigns,  among  other  breaches, 
applied  to  an  indictment  for  conspiracy.     See  one  which  from  his  own  showing  could  not 
also,  Cheetliam  v.  Tillotson,  5  J.  R.  430.    The  have  taken  place  before  the  action  was  brought, 
rule  in  civil  actions  has  been  recently  affirmed  the  court  cannot  intend  that  the  damages,  if 
in  England,  Eliot  v.  Allen,   I   Man.  Gr.    &  assessed  generally,  were  given  only  for  that 
Scott,  18.     Where  a  breach  gives  no  data  to  matter   in   the   count  which  was  actionable, 
regulate  the  assessment  of  damages,  though  it  and  therefore  will  reverse  the  judgment.    Gor- 
negative   the  words  of  the   condition  of  the  don    v.   Kennedy,    2    Binn.    287  ;    Lewis   v. 
bond,  it  is  not  well  assigned.     People  v.  Rus-  Witham,  2  Strange,  1185. 
sell,  4  Wend.  570.    But  if  so  assigned  that  the  ||  Johnson  v.  Mullin,  12  Ohio,  10  ;  Chisom 
plaintiff  would  be  entitled  to  nominal  damages  v.  School  Directors,  19  Ohio,  289. 
only,  it  is  not  enough.    Albany  Dutch  Church  T[  Kitchenman  v.  Skeel,  3  Exch.  49. 

1  So  in  an  action  against  joint  debtors  or  obligors  where  all  are  named  as  defendants,  a  sev- 
eral judgment  cannot  be  given.     Sager  v.  Nichols,  1  Daly,  1. 


en.    XXIV.]  VERDICT.  087 

on  the  good  parts."  *^  So  in  Ohio,  if  the  declaration  contains 
a  good  count  among  defective  counts,  the  court  on  error  will 
intend  that  the  verdict  was  well  taken  on  the  good  count,  unless 
the  record  shows  that  it  was  rendered  wpon  those  that  were  de- 
fective.! Mr.  Sergeant  Williams,  in  his  valuable  notes  to  Saun- 
ders' Reports,  t  after  collecting  a  great  number  of  cases  on  this 
subject,  observes  that  the  result  of  them  all  appears  to  be,  that 
where  it  is  expressly  and  positively  averred  in  the  declaration 
that  the  plaintiff  has  sustained  damages  for  a  cause  arising  subse- 
quent to  the  commencement  of  his  suit,  or  previous  to  his  hav- 
ing any  right  of  action,  and  the  jury  gives  entire  damages,  the 
judgment  will  be  arrested.  But  when  the  cause  of  action  is 
properly  laid,  and  the  other  matter  comes  in  either  under  a  scil- 
icet, or  is  void,  insensible,  or  impossible,  and  it  therefore  cannot 
be  intended  that  the  jury  ever  had  it  under  their  consideration, 
the  plaintiff  will  be  entitled  to  judgment.§  The  better  mode, 
of  course,  where  any  difficulty  of  this  kind  is  apprehended,  is 
to  assess  the  damages  severally  on  each  count.  In  such  case 
the  judgment  will  be  arrested  only  on  the  count  that  is  bad.|| 

Count  Bad  in  Part.  —  So  part  of  a  count  may  be  bad ; 
and  in  such  a  case,T[  in  an  action  of  covenant  for  quiet  [584] 
enjoyment,  the  plaintiff  had  averred  by  way  of  special 
damages,  after  setting  out  an  eviction,  that  he  had  lost  divers 
large  sums  of  money  expended  on  and  about  improving  the 
premises,  it  was  insisted  that,  as  part  of  the  special  damage  did 
not  fall  within  the  covenant,  and  the  jury  had  assessed  gen- 
eral damages,  the  whole  was  erroneous.  But  Abbott,  C.  J.,  inti- 
mated that,  the  whole  declaration  consisting  of  one  count,  after 
verdict  it  was  to  be  presumed  that  the  judge  at  the  trial  directed 
the  jury  to  confine  their  attention  to  that  part  of  the  special 

*  Leach  v.  Thomas,  2  Mees.  &  W.  427  ;  1|  Hayter  v.  Moat,  2  M.  &  W.  56.     In  the 

Emblin  v.  Dartnell,  12  M.  &  W.  830  ;  Graves  case  of  Gregory  v.  The  Duke  of  Brunswick,  7 

V.  Waller,  19  Conn.  II.  90.  Scott's  New  Hep.  972,  the  jury  having  found 

t  Hopkins  v.  Beadle,  1  Caines,  347  ;  Lyle  a  general  verdict  for  the  defendants,  the  court 

V.  Clason,  1  Caines,  581.  refused  to  award  a  venire  de  novo  on  the  ground 

t  2  Saund.  169.  that  they  had  not  assessed  damages  on  the  is- 

§  Steele  v.  Prest.  of  W.  I.  L.  N.  Co.  2  J.  R.  sue  at  law. 

286.  IT  Campbell  v.  Lewis,  3  Barn.  &  Aid.  392. 

1  In  case  of  an  action  for  an  injury  to  a  right,  if  necessary,  it  must  be  presumed  after 
verdict,  that  special  damage  was  proved.  King  v.  The  Rochdale  Canal  Co.  6  Eng.  L.  &  E. 
241. 

2  In  slander,  if  the  words  are  all  spoken  at  one  time  and  all  embraced  in  one  count,  and 
among  them  are  any  that  will  maintain  the  action,  a  verdict  for  the  plaintiff  will  be  good, 
since  it  will  be  intended  that  the  damages  are  for  the  actionable  words  only,  and  that  the  others 
were  alleged  for  aggravation.  But  if  the  action  be  for  different  words  spoken  at  different 
times,  and  will  lie  for  the  one,  but  not  for  the  other,  a  general  verdict  for  entire  damages  will 
not  be  good.    Empson  v.  Griffin,  11  A.  &  E.  186. 


688  PLEADING   AND    PRACTICE.  [CH.    XXIV. 

damage  only  which  was  relevant  to  the  covenant  broken.  So 
in  New  York,  it  has  been  held  that  where  a  count  contains  two 
separate  and  distinct  allegations  of  damages,  one  actionable  and 
the  other  not,  no  motion  in  arrest  of  judgment  will  be  sustained ; 
for  the  court  will  intend,  after  verdict,  that  the  damages  were 
only  given  for  the  actionable  part  of  the  declaration.*^ 

Joint  Torts.  —  In  regard  to  the  verdict,  the  question  of  sev- 
erance is  important  in  another  point  of  view.^  Where  several 
persons  are  jointly  charged  in  an  action  of  tort,  as  of  assault, 
battery,  and  false  imprisonment,  and  they  either  plead  jointly, 
or  sever  in  their  pleas,  or  one  suffer  judgment  to  go  by  default, 
if  the  jury  assesses  several  damages,  the  verdict  is  wrong,  and 
the  judgment  will  be  erroneous;!  for  the  trespass  being  jointly 
charged,  and  the  jury  finding  them  jointly  guilty,  the  damages 
cannot  be  separated,  and  consequently  the  verdict  should  be  for 
the  amount  which  the  most  culpable  ought  to  pay.^  But  in 
such  a  case,  the  difficulty  can  be  remedied  by  entering  a  noUe 
prosequi  against  all  but  one,  and  taking  judgment  against  him 
only.J 

*  Steel  V.  Prest,  of  Western  I.  L.  W.  Co.  Esp.  (N.  C.)  158 ;  Bohun  y.  Taylor,  6  Cowen, 

2  J.  R.  286  ;  10  Coke,  130  ;  Willes  Rep.  443  ;  313  ;  Wakely  v.  Hart,  6  Bin.  316,  319  ;  Bost- 

5  Bac.  Abr.  249.  wick  v.  Lewis,  1  Day,  34  ;  Crawford  v.  INIor- 

t  Salmon  v.  Smith,  1   Saunders,  207,  note  ris,   5   Grattan,   90 ;  Halsey   v.   Woodruff,    9 

2;  Hill  V.  Goodchild,  5  Burr.  2790;  Mitchell  Pick.  555;  Beal  v.  Finch,  1  Kern.  128. 

V.  Milbank,  6  T.  R.   199;  Brown  v.  Allen,  4  |  Holley  v.  Mix,  3  Wend.  350. 

1  This  rule  was  also  followed  by  the  New  York  Supreme  Court.  Edwards  v.  Reynolds, 
Hill  &  D.  Supp.  53.  But  in  the  New  York  Superior  Court  it  has  been  held,  that  where  dam- 
ages have  been  assessed  by  the  jury  in  one  sum  upon  two  items  of  claim,  on  one  of  which 
plaintiff  was  entitled  to  recover,  while  on  the  other  he  was  not,  and  they  cannot  be  severed 
and  apportioned  by  the  appellate  court,  there  must  be  a  new  trial  unless  the  plaintiff  will  re- 
mit the  damages  entirely.     Sherry  v.  Frecking,  4  Duer,  452. 

2  Damages  can  be  assessed  only  for  the  injury  to  the  plaintiff.  Duncan  v.  Brown,  15  B. 
Monr.  (Ky.)  186. 

^  See  ante,  578,  note.  When  a  declaration  in  assumpsit  contains  a  common  count,  after 
judgment  for  the  plaintiff  on  demurrer,  a  writ  of  inquiry  should  be  awarded  to  ascertain  the 
damages.     Stanton  v.  Henderson,  1  Ind.  69. 

Where  issue  on  a  plea  in  abatement  is  found  for  the  plaintiff,  the  judgment  against  the  de- 
fendant is  final,  and  the  same  jury  should  assess  the  damages.  If  they  fail,  however,  to  do 
so,  under  the  practice  in  Kentucky  a  jury  to  inquire  of  damages  may  be  called,  instead  of 
ordering  a  venire  denovo.     Weathers  v.  Mudd,  12  B.  Monr.  (Ky.J  R.  112. 

A  judgment  by  default  after  demurrer  sustained  to  a  plea  in  abatement,  is  an  admission 
of  the  plaintiff's  right  to  recover  damages,  but  not  as  to  the  amount  of  damages ;  and  upon 
a  writ  of  inquiry,  the  defendant  has  a  right  to  cross-examine  the  plaintiff's  witnesses. 
Thompson  v.  Haislip,  14  Ark.  (Barb.)  220.  The  Chicago  &  Rock  Island  R.  R.  Co.  v.  Ward, 
16  111.  522. 

Where  the  defendant,  in  an  action  sounding  in  tort,  brought  by  one  (or  more)  of  several 
joint  tenants,  permits  the  plaintiff"  to  sue  alone,  by  failing  to  plead  the  joint  tenancy  in  abate- 
ment, the  recovery  should  be  for  the  damages  sustained  by  all  the  joint  tenants.  The  defend- 
ant is  not  entitled,  in  an  action  by  one  of  several  joint  tenants, — e.  g.  partners,  —  after  neg- 
lecting to  avail  himself  of  the  objection  by  plea  in  abatement,  to  give  it  in  evidence  to  reduce 
the  damages.  He  is,  however,  entitled  to  do  this  in  an  action  by  one  of  several  tenants  in 
common.  Zabriskie  r.  Smith,  3  Kern.  (N.  Y.)  322.  But  compare  Sheldon  v.  Van  Slyke,  16 
Barb.  (N.  Y.)  26. 


ch.  xxiv.]  verdict.  689 

Several  Torts  by  Different  Defendants  in  Same  Suit.  — 
But,  on  the  other  luind,  if  the  charge  is  several,  the  rule  is  the 
reverse.  So,  in  an  action  against  divers  persons  found  guilty 
of  several  takings  or  offenses,  damages  ought  to  be  assessed 
against  them  severally ;  as  in  trespass  for  battery  and  goods, 
if  one  be  found  guilty  for  the  battery,  and  the  other  for  the 
goods  taken. 

So,  if  against  three  defendants,  one  demurs,  another  [585] 
makes  default,  and  a  third  joins  issue ;  on  the  trial,  sev- 
eral damages  shall  be  assessed  against  those  who  demur  and 
make  default.*  Where  there  is  a  demurrer  to  evidence  and  a 
joinder,  the  court  may  have  the  damages  assessed  by  the  jury 
conditionally,  or  they  may  discharge  the  jury,  leaving  the  dam- 
ages to  be  assessed  by  another  jury,  should  the  demurrer  be 
overruled.! 

In  a  joint  action  of  assault  against  husband  and  wife,  and 
evidence  of  a  separate  assault  by  the  husband  alone,  the  plain- 
tiff cannot  recover  damages  for  such  separate  assault.^ 

Award  of  Arbitrators.  —  It  has  been  held  in  England,  that 
where  a  verdict  is  taken  at  Nisi  Prius,  subject  to  the  award  of 
an  arbitrator,  to  whom  all  matters  in  difference  are  referred, 
he  cannot  award  a  greater  sum  than  that  for  which  the  verdict 
was  taken.     But  this  does  not  apply  to  the  action  of  debt. §^ 

*  Com.  Dig.  Damages,  E.  5  :  Chapman  v.  suited  as  to  the  issue,  he  cannot  proceed  to 
House,  T.  13  G.  II. ;  Str.  2,  1140.  assess  contingent  damages  on  the  counts  de- 
Many  curious  cases,  as  to  assessing  dam-  murred  to.  Packard  v.  Hill,  7  Cow.  434. 
ages,  may  be  found  in  Viner's  Abr.  tit.  Dam-  In  the  same  State,  the  damages  can  be  as- 
ages,  C.  and  I).  But  the  actions  being  obso-  sessed  by  the  clerk,  on  promissory  notes, 
lete,  or  the  cases  in  themselves  peculiar  and  hills,  etc.,  but  not  on  the  common  counts  nor 
extraordinary,  it  would  be  out  of  place  to  unliquidated  demands  ;  and  in  regard  to  this, 
take  further  note  of  them  here.  several  cases  have  been  decided.  Burr  v. 
As  to  writs  of  inquiry  for  assessment  of  Waterman,  2  Cow.  36  ;  Colden  v.  Knicker- 
damages,  much  law  is  to  be  found  in  Vin.  backer,  2  Cow.  31  ;  Rogers  v.  Coleman,  3 
Abr.  I)amages,  D.  a.;  but  it  does  not  prop-  Cow.  62;  Beard  v.  Van  Wickle,  3  Cow.  335  ; 
erly  belong  in  this  place.  Scebar  v.  Yates,  6  Cow.  40. 

In  New  York,  in  an  action  against  several,  t  Bull,  N.  P.  314;  2   Tidd's  Pr.  786;  An- 

if   one  pleads    to   issue   and   another   suffers  drews  v.  Hammond,  8  Blackf.  540. 

judgment   by  default,   damages  must   be   as-  |  Goddard  i\  Hart,  5  Oilman,  95. 

sessed  against  both  at  the  same  time,  by  the  §  Bonner  v.  Charleton,  5  East,  139  ;  Annan 

jury  who  try  the  issue.     Van  Schaick  v.  Trot-  v.  Job,  Nov.  14  and  16,  1846,  London  Jurist, 

ter,"  6  Cow.  599.  vol.  x.  1083;  Pearce  v.  Cameron,  1  Mees.  & 

On  a  venire  tarn  quam,  to  try  an  issue  as  to  W.  676,  is  also  cited  in  the  last  case,  but  I 

one  count,  and  assess  contingent  damages  on  cannot  find  it. 
demurrer  to  others,  if   the  plaintiff  be  non- 

1  A  verdict  for  "  $100  actual  damages  and  $1,000  as  exemplary  damages  "  is  good,  as  equiv- 
alent to  a  verdict  for  $1,100  damages.     Pendleton  v.  Davis,  1  Jones  (N.  C.),  98. 

In  an  action  of  trespass,  the  jury  rendered  a  verdict  in  favor  of  the  plaintiff  for  costs.  Held, 
that  such  a  verdict  and  the  judgment  thereon  were  nullities  ;  that  in  legal  effect  this  was  a 
finding  in  favor  of  the  defendant,  and  the  law  carries  the  costs  in  his  fixvor  against  the  plaintiff. 
Mangham  v.  Reed,  11  Ga.  137. 

The  jury  should  find  for  the  plaintiff  the  amount  of  his  debt  as  proved,  and  the  damages 
(interest)  separately;  and  the  judgment  should  pursue  the  verdict.  Y'et  where  the  verdict 
44 


690  PLEADING   AND    PRACTICE.  [CH.   XXIV. 

Obsolete  Judgment  of  "Damage  Clear."  —  There  was  for- 
merly, in  England,  a  charge  on  the  plaintiff's  judgment  called 
damage  clear,  which  was  a  payment  required  to  be  made  of  twelve 
pence  in  the  pound;  but  it  seems  to  have  been  long  since 
abolished;  for  in  an  early  case  it  appears  that  the  court 
"thought  it  hard  that  the  plaintiff  should  be  stopt  of  his  judg- 
ment till  he  had  paid  his  damage  clear,"  and  they  resolved  to 
amend  it  * 

Petition  of  Right.  —  In  England,  a  petition  of  right  is  said  to 
be  maintainable  for  no  other  objects  than  land  or  specific  chat- 
tels, certainly  not  for  a  sum  of  money  claimed  either  as  debt  or 
by  way  of  damages.! 

[586]  Costs.  —  The  other  questions  in  regard  to  damages  re- 
late principally  to  the  subject  of  costs ;  and,  indeed,  in  the 
early  periods  of  the  English  jurisprudence,  damages  and  costs, 
damna  et  custagia,  were  convertible  terms ;  %  but  the  questions 
which  regard  the  relation  of  damages  to  costs,  though  extremely 
important  in  practice,  are  so  local  in  their  character,  and  depend 
so  much  on  statutes,  that  it  would  be  inexpedient  here  to  do 
more  than  advert  to  them.^ 

*  March's  Reports,  76.  In  the  same  State,  in   debt  on   a  sheriff's 

+  Baron    De   Bode's   case,  8     Q.   B.   208,  bond  upon  the  execution  of  a  writ  of  inquiry, 

where  the  autliorities  are  stated  at  large.  after  a  demurrer  to  the   replication   assigning 

If  a  demurrer  to  a  declaration  in  a  suit  by  breaches  has  been  overruled,  the  qvantum  of 

drawer  against  acceptor  be  overruled,  the  court  the  relator's   damages  is  the  only  subject   of 

may,  in  Indiana,  assess  the  damages  so  far  as  inquiry,     Clark  et  al.  v.  The  State,  7  Blackf. 

the  amount  due  on  the  bill  is  concerned ;  but  570. 

as  to  the  costs  of  the  protest,  if  chargeable  at  J  Zink  v.  Langton,  Doug.  751. 

all,  there  must  be  a  jury.    Phipps  v.  Addison, 

7  Blackf.  375. 

and  judgment  give  in  an  aggregate  sum,  as  damages,  the  amount  of  the  debt  and  legal  interest 
thereon  from  the  time  when  due  until  the  time  of  the  verdict,  if  the  total  amount  found  by 
the  verdict  for  damages  does  not  exceed  the  principal  and  interest  due  or  the  sum  laid  as  dam- 
ages in  the  declaration,  such  verdict  will  not  be  held  invalid,  but  will  authorize  and  support 
a  judgment  for  the  sum  in  damages  so  found.     Young  v.  Chandler,  14  B.  Monr.  (Ky.)  252. 

In  South  Carolina,  where  in  debt  on  a  bond,  the  jury  in  finding  for  the  plaintitf  on  the 
general  issue,  assess  the  damages  (as,  under  the  practice  there,  is  proper),  and  allow  the 
plaintiff  only  the  principal  sum  due,  but  not  the  interest,  to  which  he  is  entitled,  his  only 
remedy  is  by  appeal.  Judgment  for  the  interest  non  obstante  veredicto,  will  not  be  allowed, 
nor  can  he  collect  it  by  marking  it  for  collection  on  the  Ji.fa.  Gourdin  v.  Read,  10  Rich.  (S. 
C.)  217. 

1  Costs  are  an  incident  to  the  judgment,  and  cannot  be  allowed  by  the  jury  as  damages. 
Shay  V.  Tuolumne  Water  Co.  6  Cal.  286.  And  although  if  a  jury  ask  what  amount  of  dam- 
ages will  carr}'  costs,  there  is  no  reason  why  the  judge  should  not  tell  them,  as  it  is  part  of  the 
law,  yet  their  having  given  a  verdict  in  ignorance  that  it  will  not  carry  costs,  is  no  reason 
why  it  should  be  disturbed  after  it  is  recorded.  Kelmore  v.  Abdoolah,  27  L.  J.  (Exch.) 
307. 


CHAPTER  XXV. 

OF    DAMAGES   WITH    REGARD    TO    EMDENCE. 

As  a  General  Rule,  independently  of  Recent  Legislation,  the  Plaintiff  is  not 
allowed  to  testify.  —  Exceptions  in  which  he  is  admitted  to  give  Evidence. — 
Abrogation  of  the  Common-law  Rule.  —  The  Witness  is  to  testify  only  as 
to  Facts,  and  not  as  to  Opinions.  —  Exception  in  Case  of  Experts  ;  in  Case  of 
Value.  —  Doctrine  of  Presumptions.  —  Sub-contracts.  —  Frequent  necessity 
of  being  content  wuth  Imperfect  and  Unsatisfactory  Proof. 

We  have  now  to  consider  the  mode  of  proof  by  which  claims 
to  damage  are  substantiated.  The  rules  which  govern  evidence 
as  applied  to  fix  the  measure  of  relief,  are  neither  numerous  nor 
complex,  but  they  deserve  careful  attention. 

We  have  seen*  that  in  the  early  stages  of  the  civil  law,  the 
plaintiff  was  allowed  to  fix  the  amount  of  the  compensation  to 
which  he  conceived  himself  entitled,  subject  only  to  the  restrain- 
ing hand  of  the  judex.  In  the  common  law,  independently  of 
statutory  innovation,  the  rule  is  carried  to  the  other  extreme  ; 
for,  as  a  general  principle,  neither  party  to  the  record  is  allowed 
to  give  testimony  in  any  branch  of  the  case.f  But  to  this  rule 
certain  exceptions  were  introduced.^ 

Exceptions  to  the  Common-law  Rule  excluding  the  Testi- 
mony OF  the  Party.  —  The  oath  of  the  party  is  admitted  by  the 
common  law,  in  respect  of  a  lost  deed,  or  other  paper,  prepara- 
tory to  the  introduction  of  secondary  evidence  to  prove  its  con- 

*  Ante,  23.  be  inferred  from  the  foet  of  his  beinir  a  ptarty 

t  In  EngLand,  in  an  action  of  tort,  where  to  the  record.     Haddrick  r.  Heslop  et  a!.  12  Q. 

one  defendant  joins  issue  and  the  other  lets  B.  267.     A  party  to  the  record  as  such  is  no 

judgment  go  by  default,  the  party  who   has  longer,   in   England,  incompetent   to    testify. 

sutfered  judgment  may  give  evidence  for  the  Worrall  u.  Jones,  7  Bing.  395. 

plaintiff,  if  he  has  no  other  interest  than  can 


1  It  is  one  of  the  natural  concomitants  of  illness  and  of  physical  injuries,  for  the  sick  or  in- 
jured person  to  complain  of  pain  and  distress.  And  evidence  of  such  complaints,  in  connection 
with  other  proofs  of  injury  received,  is  admissible  from  the  necessity  of  the  case,  in  an  action 
for  the  injury  sustained,  to  show  its  extent,  etc.  Such  evidence  does  not  fall  within  the  rule 
which  excludes  declaration  of  a  party  in  his  own  fovor.  Caldwell  v.  Murphy.  1  Kern.  416;  and 
see  S.  C.  below,  1  I3ucr.  233 ;  also,  to  same  effect.  Bacon  v.  The  Inhabitants  of  Charlton,  7 
Cush.  (Mass.)  581. 


692  EVIDENCE.  [CH.    XXV. 

tents.  So,  too,  in  complaints  imder  the  bastardy  acts,  the  oath 
of  the  female  is  admitted  to  charge  the  defendant  vi^ith  the 
paternity  of  the  offspring.  So,  again,  the  rule  has  been  relaxed 
in  order  to  prove  the  amount  of  compensation  to  which 
[588]  a  party  is  entitled ;  thus  the  oath  of  the  plaintiff  is  ad- 
mitted in  many  States  of  the  Union  to  prove  the  truth  of 
entries  in  his  books,  of  goods  delivered  in  small  amounts,  or  of 
daily  labor  performed,  when  the  party,  from  his  situation,  has 
no  evidence  but  the  accounts  kept  by  himself,  and  where,  as  a 
general  thing,  from  the  nature  of  the  traffic  or  service  he  cannot 
have.  So,  too,  where  robberies  or  larcenies  have  been  commit- 
ted, and  no  evidence  exists  but  that  of  the  party  robbed  or 
plundered,  he  has  been  admitted  as  a  witness  to  prove  his  loss  ; 
for  it  is  said  that  in  these  cases  the  party  injured  shall  have  an 
extraordinary  remedy  in  odium  spoUatoris.  On  this  ground,  in  an 
action  against  the  liundred  under  the  English  statute  of  Winton, 
the  person  robbed  was  admitted  as  a  witness  to  prove  his  loss 
and  the  amount  of  it.*  So,  too,  in  Pennsylvania,  in  an  action 
against  the  county  for  the  destruction  of  property  by  a  mob, 
the  plaintiff  may  prove  ownership  and  the  value  of  wearing 
apparel  destroyed,!  but  not  the  destruction  of  household  furni- 
ture, because  there  the  argument  ex  necessitate  does  not  apply.J 
So,  also,  in  equity,  where  a  man  ran  away  with  a  casket  of 
jewels,  the  party  injured  was  admitted  as  a  witness.§  So,  too, 
when  the  defendant,  a  ship  master,  broke  open  and  plundered 
the  plaintiff's  trunk,  the  latter  was  allowed  to  testify  to  the  con- 
tents of  the  trunk.ll 

An  effort  has  been  made  in  Pennsylvania  to  extend  the  prin- 
ciple of  these  exceptions  to  all  cases  of  passengers  by  public 
conveyances,  where  there  is  no  criminal  nor  even  tortious  act 
committed  by  the  defendant  beyond  mere  negligence ;  and  it 
has  been  said  that  in  such  cases  the  plaintiff  may  testify  from 
necessity.il  ^     But  in  Massachusetts  this  has  been  denied ;  the 

*  Bui.  N.  P.   187  ;   Porter  i;.  Hundred  of  %  Ibid. 

Rejiland,  Peake's  Add.  Cases,  203;  Suow  ?;.  §  East  India  Co.  v.  Evans,  1  Vern.  305. 

Eastern  R.  R.  Co.  12,  Met.  44.  ||  Herman  v.  Drinkwater,  1  Greenl.  27. 

t  The   County  v.  Leidy,  10  Barr,  45.     See  IT  Whitesell  v.  Crane,  8  Watts  &  S.  369. 
also,  Clark  v.  Spence,  10   W.  335.     M'Gill  v. 
Rowand,  3  Barr,  451. 

1  Before  the  abrogation  of  the  common-law  rule,  the  plaintiff  himself,  in  actions  against  a 
common  carrier  or  innkeeper  to  recover  for  a  trunk,  etc.,  lost,  was  frequently  allowed  to  prove  its 
contents.  Uoyle  v.  Keyser,  6  Ind.  242  ;  The  Mad  River  &  Lake  Erie  Railroad  Company  v. 
Fulton,  20  Ohio,  318  ;  Taylor  v.  Monnot,  1  Abbott's  (N.  Y.)  Pr.  R.  325  ;  S.  C  4  Duer,  116. 
But  in  Garvey  v.  The  Camden  &  Amboy  Railroad  Company  (4  Abbotts'  N.  Y.  Pr.  R.  171) 
it  was  held,  that  the  rule  of  evidence  which  allows  the  plaintiff,  in  an  action  against  a  common 
carrier  to  recover  for  a  lost  trunk,  etc.,  to  prove  the  value  of  the  contents  by  his  own  oath,  was 
confined  to  cases  in  whicli  fraud  or  wrong  is  proved  upon  the  defendant;  and  had  no  applica- 
tion to  cases  of  loss  through  negligence  merely.  To  the  same  effect  is  Phenix  v.  Clark,  2  Mich. 
327. 


CH.   XXV.]  OPINIONS    OF   WITNESSES.  693 

old  principle  has  been  adhered  to,  and  in  a  case  of  mere  negli- 
gence, it  has  been  decided  that  the  plaintifl'  is  not  competent, 
even  though  he  has  no  other  testimony  as  to  the  amount  of  his 
loss.* 

In  New  York,  the  admission  of  the  plaintiff,  as  a  witness  in 
these  cases,  has  been  sanctioned  by  statute ;  the  general  railroad 
actt  of  that  State  providing,  where  baggage  is  properly  checked, 
that  if  not  delivered  on  the  production  of  the  check,  "  the  plain- 
tiff may  himself  be  a  witness,  in  any  suit  brought  by  him,  to 
prove  the  contents  and  value  of  said  baggage."  t 

Recent  Abrogation  of  the  Common-law  Rule.  —  The  original 
rule  of  the  common  law  has  been  now,  however,  so  far  changed, 
both  in  England  and  in  this  country,  by  statute,  that  the  obser- 
vations contained  in  the  preceding  paragraphs  have  little  impor- 
tance. In  England,  New  York,  Connecticut,  and  several  other 
States  of  the  Union,  the  rule  of  the  common  law  has  been  abro- 
gated, and,  with  more  or  fewer  exceptions,  parties  are  permitted 
to  testify  in  chief  and  to  all  facts  pertinent  to  the  case.^ 

Witness  to  Testify  to  Facts,  not  Opinions.  —  Another  gen- 
eral rule,  which  pervades  all  our  law,  is  that  the  witness 
is  to  testify  only  to  facts.^     He  is  to  speak  as  to  the  facts  [589] 
which  he  has  heard  or  seen.     His  opinion  is  not  to  be 
given  ;^  for  it  is  the  opinion  of  the  jury  on  the  testimony  which 
forms  the  verdict  and  decides  the  case. 

Exceptions. —  But  to  this  rule,  again,  there  are  many  impor- 
tant exceptions.  So,  pedigree  is  often  proved  by  the  hearsay  of 
the  family.  So,  handwriting  is  proved  by  the  opinions  of  those 
familiar  with  the  signature  of  the  party.  So,  too,  the  witness 
has  been  allowed  to  state  his  opinion  in  cases  of  criminal  con- 
versation, to  show  the  state  of  the  affections  of  the  parties.§ 
And,  on  similar  grounds,  in  cases  of  breach  of  promise  of  mar- 

*  Snow  V.  Eastern  R.  R.  Co.  12  Met.  44.  S.  C.  R.  364,  and  Milliman  v.  Oswego  &  Syra- 

t    Laws  of  1850,  c.  140,  §  37.  cuse  R.  R.  Co.  10  Barb.  87. 

J  As  to  liow  far  this  provision  is  applicable  §  Trelawney  v.  Coleman,   2   Starkie,   168, 

to  all  the  railroads  existing-  in  the  State,  see  191. 

Marsh  v.  New  York  &  Erie  R.  R.  Co.  14  Barb. 

1  The  jury  are  not  bound  by  the  evidence  of  one  of  the  parties  to  the  suit  in  estimating  the 
damages,  though  there  is  no  evidence  before  them  to  fix  the  amount.  Bee  Printing  Co.  v. 
Hichborn,  4  Allen  (Mass.),  63. 

2  But  in  an  action  of  trespass,  q.  c.  f.  where  the  defendant's  malice  might  be  a  ground  of  ex- 
emplary damages,  it  has  been  held  in  New  Hampshire,  that  the  plaintitf  being  a  competent 
witness,  might  testifv  what  his  motive  and  purpose  were  in  doing  the  acts  complained  of. 
Norris  v.  Morris,  40  N.  H.  39.'). 

3  Blair  v.  The  Milwaukee  and  Prairie  du  Chien  R.  R.  Co.  "0  Wis.  262. 


694  EVIDENCE.  [CH.    XXV. 

riage.  In  an  action  of  the  latter  description,  the  Supreme 
Court  of  New  York  said,  "  We  do  not  see  how  the  various  facts 
upon  which  an  opinion  of  the  plaintiff's  attachment  must  be 
grounded,  are  capable  of  specification,  so  as  to  leave  it,  like  or- 
dinary facts,  as  a  matter  of  inference  to  the  jury.  It  is  true,  as 
a  general  rule,  that  witnesses  are  not  allowed  to  give  their 
opinions  to  a  jury ;  but  there  are  exceptions,  and  we  think  this 
one  of  them.  There  are  a  thousand  things  indicating  the  exist- 
ence of  degrees  of  the  tender  passion,  which  language  cannot 
specify.  The  opinions  of  witnesses  on  this  subject  must  be  de- 
rived from  a  series  of  instances  passing  under  their  observation, 
which  yet  they  never  could  detail  to  a  jury.*  So,  too,  evidence 
of  this  kind  has  been  admitted  in  cases  of  insanity ;  but  it  has 
been  pronounced  by  a  very  able  judge, "  the  most  unsatisfactory 
and  the  least  to  be  depended  on."  f 

Opinions  as  to  Quantum  of  Damages  Incompetent. —  The  gen- 
eral rule  which  requires  a  witness  to  speak  to  facts  within  his 
knowledge,  is  applied  to  the  subject  of  compensation  :  the  dam- 
age must  be  proved  like  any  other  fact  in  the  cause,  and  no  tes- 
timony amounting  to  mere  opinion  is  competent.^  So  in  New 
York,  a  witness  cannot  be  allowed  to  give  his  opinion  as  to  the 
amount  of  damages  sustained  by  a  party  in  consequence  of  a 
mill  lying  still.t  So,  the  opinions  of  witnesses  as  to  the  amount 
of  damages  caused  by  the  deprivation  or  withdrawal  of  water 

from  a  tavern,  are  inadmissible.§  So,  too,  on  ascertain- 
[590]  ing  the  injury  caused  by  an  alleged  nuisance,  a  witness 

cannot  give  his  opinion  as  to  the  amount  of  damages.||  ^ 
So  in  an  action  for  the  breach  of  a  covenant  contained  in  a 
lease,  that  the  defendant  would  not  let  any  other  mill  site  on 
the  same  stream,  it  was  held  not  proper  to  admit  witnesses  to 
testify  their  opinion  as  to  the  amount  of  damage  which  the 
plaintiffs  had  sustained  by  the  erection  of  the  rival  site,  and  a 
new  trial  was  ordered.^  And  the  correctness  of  the  principle 
laid  down  in  this  case  has  been  very  recently  affirmed.**  ^ 

*  M'Kee  v.  Nelson,  4  Cow.  355.  ||  Fish  v.  Dodge,  4  Denio,  311. 

t  Clark  r.  Fisher,  1  Paige,  171.  i  Norman  v.  Wells,  17  Wend.  137,  161. 

J  Dolittle  V.  Eddy,  7  Barb.  S.  C.  R.  75.  **  Fish  v.  Dodge,  4  Denio,  311,  318. 

§  Harger  v.  Edmonds,  4  Barb.  S.  C.  R.  256  ; 
Giles  V.  O'Toole,  Ibid.  261. 

1  Cook  V.  Brockway,  21  Barb.  (N.  Y.)  331  ;  Wilcox  v.  Leake,  11  La.  Ann.  178. 

'■*  As  a  general  rule,  the  opinion  of  a  witness  as  to  the  amount  of  dainn/jes  which  the  landholder 
will  sustain  by  reason  of  the  construction  and  use  of  a  railroad,  is  not  evidence.  Atlantic  & 
Great  Western  R.  R.  Co.  v.  Campbell,  4  Ohio  St.  583. 

8  But  such  damage  may  be  shown  by  competent  evidence.  And  where  a  tavern  stand  was 
sold  on  the  condition  that  the  vendor  should  not  open  another  in  the  town  witliin  a  certain 


CH.    XXV.]  EXPERTS.  695 

On  the  same  ground,  and  with  still  stronger  reason,  it  has 
been  decided  in  Ohio  that  a  person  who  is  present  during  the 
trial  of  a  cause,  and  has  heard  witnesses  describe  the  manner  in 
which  a  ford  is  injured  by  the  erection  of  a  dam  across  a  stream 
of  water  below  it,  is  not  competent  to  give  his  opinion  of  the 
damages  sustained  by  the  party  injured.*  So,  intelligent  mer- 
chants, well  acquainted  with  the  plaintiff  and  his  business,  were 
held  not  competent  to  give  an  opinion  as  to  the  damage  of  the 
plaintiff  in  being  deprived  of  the  advantage  of  his  own  care  and 
oversight.f  ^ 

Experts.  —  To  the  general  rule  that  the  witness's  opinion 
cannot  be  received  as  to  the  amount  or  character  of  injury  sus- 
tained, there  are,  however,  some  considerable  exceptions.  Of 
these,  perhaps  the  most  comprehensive  and  important  is  that 
which  admits  persons  of  science,  or  experts  in  any  profession,  to 
testify  as  to  their  opinion  on  a  given  state  of  facts  relating  to 
matters  in  regard  to  which  their  education  gives  them  peculiar 
capacity  for  forming  a  correct  judgment.^ 

So  in  Massachusetts,  on  the  trial  of  an  action  to  recover  dam- 
ages for  injury  done  to  the  plaintiff's  garden  and  nursery  by 
smoke,  heat,  and  gas  proceeding  from  the  defendant's  brick  kiln, 
two  gardeners  who  had  much  experience  in  raising  and  culti- 
vating fruit-trees,  shrubs,  and  plants,  and  who  had  testified  to 
the  particulars  of  the  plaintiff's  injury,  were  allowed  to  give 
their  opinion  as  to  the  amount  of  damage.  And  the  court  say, 
"It  seems  to  us  that  it  would  be  impracticable  to  dis- 
pense with  this  species  of  testimony  in  many  actions  for  [591] 
trover  for  personal  property,  where  no  detail  of  facts  could 
adequately  inform  the  jury  of  the  value  of  the  article.  The 
opinion  of  a  witness  as  to  the  value  of  a  horse  is  much  more 
satisfactory  evidence  than  a  detailed  statement  of  his  size,  color, 
age,  etc.,  to  give  the  jury  the  requisite  information  to  enable 
them  to  assess  damages  for  the  conversion  of  a  horse."  §  ^     So  in 

*  Shepherd  v.  Willis,  19  Ohio,  142.  %  Folkes  v.  Chadd,  3  Doug.  157. 

t  2.3  Wend.  431  ;  17  Wend.  161  ;  24  Wend.         §  Van  Dine  v.  Burpee,  13  Met.  288. 
688 ;  21  Wend.  342. 


time,  which  condition  he  broke,  and  in  his  action  to  foreclose  a  mortgage  for  the  purchase- 
money,  the  vendee's  damages  from  the  opening  of  the  rival  tavern  having  been  set  up  by  way 
of  counter-claim,  the  vendee  was  allowed  to  show  that  the  direct  result  of  opening  it  was  to  re- 
duce the  value  of  his  property  one  half     Evans  v.  Elliott,  20  Ind.  283. 

1  So  in  Louisiana,  in  a  suit  on  a  sequestration  bond,  the  opinions  of  witnesses  cannot  form 
the  basis  of  a  verdict.  They  should  testify  to  facts,  and  from  those  facts  the  jury  should  lind 
the  actxial  damages  sustained.     Bonner  v.  Copley,  15  La.  An.  504. 

2  See  Nickley  y.  Thomas,  22  Barb.  (N.  Y.)  652  ;  Smith  v.  Hill,  Ibid.  656  ;  The  Milwaukee 
&  Mississippi  Railroad  Co.  v.  Eble,  4  Chandler  (Wis.),  72.    But  in  Dunlap  v.  Snyder,  17  Barb. 


696  EVIDENCE.  [cn.    XXV. 

an  action  on  a  building  contract,  a  mason  may  be  asked  how 
long,  in  his  opinion,  it  would  take  to  dry  the  walls  of  a  house  so 
as  to  render  it  fit  and  safe  for  human  habitation.* 

The  Testimony  of  Experts  is  confined  to  Matters  of  Art 
AND  Skill,  and  must  not  degenerate  into  Conjecture.  —  But  this 
exception  is  generally  strictly  limited  to  the  case  of  experts  in 
matters  of  art  and  skill,  and  is  not  enlarged  so  as  to  admit  opin- 
ions in  ordinary  cases,  where  the  jury  may  be  supposed  compe- 
tent to  form  their  judgment  from  the  statement  of  the  facts. 
Nor  where  the  opinion  necessarily  degenerates  into  mere  con- 
jecture. So,  in  an  action  for  negligently  injuring  and  sinking 
a  canal-boat,  a  boatman  who  knew  the  boat  in  question  previous 
to  her  being  injured,  and  swore  that  he  had  raised  sunken  boats 
and  repaired  them,  cannot  testify  as  to  his  opinion  of  what  the 
damages  would  be,  from  the  description  of  the  situation  of  the 
boat  by  the  witnesses.! 

In  an  action  on  the  case  against  a  railroad  company  for  in- 
jury to  the  person  of  a  passenger  through  the  negligence  of  the 
company,  evidence  of  loss  sustained  by  the  plaintiiF  in  his  busi- 
ness in  consequence  of  the  injury  received,  is  proper  to  aid  the 
jury  in  estimating  the  plaintiff's  damages  ;  and  for  that  purpose 
the  nature  of  the  plaintiff's  business,  its  extent,  and  the  impor- 
tance of  his  personal  oversight  and  superintendence  in  conducting 
it,  may  be  shown ;  but  the  opinions  of  witnesses  as  to  the  amount 
of  loss  are  inadmissible.t 

A  party  in  the  city  of  New  York,  whose  property  is  destroyed 
by  the  order  of  the  city  officers  to  stop  the  spread  of  a  conflagra- 
tion, is  entitled  to  an  allowance  to  the  full  value  of  the  property 
destroyed,  without  any  deduction  for  the  amount  insured,  and 
interest  on  it ;  but  the  opinions  of  bystanders,  that  the 
[592]  buildings  destroyed  would  have  been  consumed  by  the 
fire  if  they  had  not  been  blown  up,  are  inadmissible.  It 
was,  however,  suggested  that  perhaps  the  opinion  of  firemen 
and  others,  having  particular  knowledge  and  experience  with 
reference  to  fires,  might  be  received.§ 

Testimont    as    to    Value.  —  Another  exception  to  the  rule 

*  Smith  V.  Gugcrty,  4  Barb.  S.  C.  R.  515.  t  Lincoln  v.  Saratoga  &  Sch'y  R.  R.  Co.  23 

t  Paige  V.  Hazard,  5  Hill,  603.  Wend.  425. 

§  The  Mayor  v.  Pentz,  24  Wend.  668. 

(N.  Y.)  561,  it  was  held  that  in  an  action  for  damages  for  killing  a  dog,  the  opinions  of  wil> 
nesses  as  to  the  value  of  the  animal  were  not  admissible.  See  as  to  proper  evidence  of  the 
value  of  a  horse,  Carr  v.  Moore,  N.  H.  131. 


CH.   XXV.]  PRESUMPTIONS.  697 

which  excludes  mere  opinion,  is  that  which  permits  testimony  to 
be  offered  as  to  the  value.^  Witnesses  familiar  with  the  article 
in  question  are  permitted  to  state  their  opinion  as  to  its  value  * 
—  and  that  in  its  actual  or  in  an  assumed  and  hypothetical  state. 
And  so  as  to  the  value  of  services.!^  So,  in  an  action  for  a 
nuisance,  an  architect,  acquainted  with  the  locality,  may  be  asked 
if  the  nuisance  depreciated  the  value  of  the  houses  in  the  neigh- 
borhood.J 

Presumptions.  —  The  question  of  damages  is  often  governed 
by  the  doctrine  of  presumptions  ;  for  it  is  to  be  borne  in  mind 
that  in  this  branch  of  our  science,  as  in  every  other,  we  are  fre- 
quently without  any  clear  or  conclusive  evidence ;  and  in  these 
cases  resort  is  often  had  to  testimony  of  an  inferior  character. 
Such  are  the  presumptions  which  arise  from  a  given  state  of 
facts,  where  the  cause  or  the  amount  of  the  injury  is  not  abso- 
lutely certain.§  In  these  cases  the  matter  is  decided  on  the 
probability  growing  out  of  the  presumption.  Presumptions  are 
sometimes  absolute,  and  not  to  be  rebutted  by  any  proof;  in 
other  cases  they  only  rise  to  the  force  of  prima  facie  evidence, 
and  may  be  met  and  contradicted  like  any  other  testimony.  So, 
where  the  plaintiff  shows  himself  to  have  sustained  damage  re- 
sulting from  the  act  of  the  defendant,  which  act  with  proper 
care  does  not  ordinarily  produce  damage,  he  makes  out  a  iwimd 
facie  case  of  negligence,  which  cannot  be  repelled  but  by  proof 
of  care,  or  some  extraordinary  accident  which  makes  care  use- 
less. j|  So,  in  case  against  a  railway  company,  for  setting  fire  to 
premises  adjoining  their  line,  the  fact  of  premises  being  fired  by 
sparks  emitted  from  a  passing  engine  is  prima  facie  evidence  of 
negligence  on  the  part  of  the  company,  rendering  it  incumbent 
on  them  to  prove  that  precautions  had  been  adopted  reasonably 
calculated  to  prevent  such  accidents.^f 

*  Joy  V.  Hopkins,  5  Denio,  84.  them.     "  To  lis,"  he  says,  "  probalnlity  is  the 

t  Brill  V.  Flagler,  2.3  Wend.  3.54.       '  very  guide  of  life." 

X  Gauntlett  v.  Whitworth,  2   Car.  &  Kir.  1|  Ellis  v.  Ports.    &  Roan.  R.  R.  Co.  2  Ired. 

720.  138  ;  Herring  v.  Wilmington  &  Raleigh  R.  R. 

§  Bishop  Butler,  in  his  Introduction  to  his  Co.  10  Ired.  402. 

Analogy,  has  some  admirable  passages  on  the  1  Pigott  v.  Eastern    Counties   Railway,   3 

nature  and  force  of  presumptions,  and  the  ab-  Man.  Gr.  &  Scott,  229. 
solute  necessity  in  many  cases  of  acting  on 


1  See  Clark  v.  B.iird,  5  Seld.  (N.  Y.)  183,  where  the  cases  on  this  subject  are  thoroughly  ex- 
amined.    But  compare  Main  v.  Gordon,  12  Ark.  (7  Eng.)  651. 

^  Lewis  V.  Trickey,  20  Barb.  (N.  Y.)  387.  But  the  value  of  skilled  services  are  to  be_ es- 
timated not  by  inquiring  what  A  or  B  would  charge  for  such  services,  but  what  the  sendees 
are  fairly  worth  by  the  common  usage  or  custom  of  compensation  ;  and  it  is  error  to  receive 
the  testimony  of  witnesses  as  to  what  they  would  charge.     Pfeil  v.  Kemper,  3  Wis.  315. 


698  EVIDENCE.  [CH.    XXV. 

Estoppel.  —  So,  again,  the  acts  of  the  parties  themselves  may 
determine  the  value  of  the  thing  in  controversy,^  and  operate 
like  an  absolute  liquidation  of  damages.  So,  in  an  action  on  an 
agreement  in  which  the  defendant  acknowledged  that  he  had 
received  of  the  plaintiff  certain  enumerated  goods,  attached  by 

the  plaintiff  as  a  deputy  sheriff,  estimated  at  fifteen  hun- 
[593]  dred  dollars,  and  which  the  defendant  promised  to  keep 

safely  and  deliver  to  the  plaintiff  on  demand;  it  was 
held  that  the  defendant  could  not  give  evidence  that  the  goods 
were  of  less  value  than  the  specified  sum,  but  that  the  valuation 
in  the  receipt  was  conclusive.* 

Contracts  for  Public  Works.  —  We  have  seen  that  in  re- 
gard to  contractors  for  public  works,  who  are  in  certain  cases 
allowed  their  profits,  the  sub-contracts  made  by  them  are  not 
evidence  to  show  what  those  profits  would  have  been,^  but  they 
are  required  to  go  into  a  minute  investigation  as  to  the  cost  of 
materials,  the  expense  of  delivery,  the  amount  and  value  of 
labor ;  and  even  with  all  these,  it  has  been  said  that  the  estimate 
of  profits  must  be  conjectural.f 

Approximate  Evidence.  —  The  application  of  the  rules  which 
we  have  thus  examined,  in  regard  to  the  proof  necessary  to  es- 
tablish a  claim  for  damages,  often  renders  it  difficult  if  not  im- 
possible to  arrive  with  precise  accuracy  at  the  object  of  the 
inquiry.  But  justice  is  after  all  but  an  approximate  science, 
and  its  ends  are  not  to  be  defeated  by  a  failure  of  strict  and 
mathematical  proof  The  following  language  of  Mr.  Justice  Story 
is  full  of  good  sense,  and  susceptible  of  frequent  and  wide  appli- 
cation :  — 

"  It  is  said,  that  it  is  difficult,  and  indeed  impracticable,  to  ascertain  the  true 
and  exact  value  of  the  property  in  this  case.  There  may  be  difficulty,  and  per- 
haps an  impossibility,  to  ascertain  its  exact  and  minute  value,  for  we  have  no 
means  of  weighing  it  in  scales,  or  fixing  its  positive  price.  But  the  same  diffi- 
culty occurs  in  many  other  cases  of  insurance,  —  as  in  cases  of  injuries  to  sails  or 
rigging,  or  spars,  by  tempest,  or  by  cutting  them  away  in  cases  of  jettison  ;  and 
yet,  no  one  doubts  that  they  must  be  contributed  for  according  to  their  value, 
ascertained  by  a  jury  in  the  exercise  of  a  sound  discretion,  upon  proper  evi- 
dence. Suppose  that  fruit  is  insured,  and  the  vessel  has  a  long  passage,  in 
which,  by  ordinary  waste  and  decay,  it  must  suffiir  some  deterioration,  and  then 

*  Jones  V.  Richardson,  10  Met.  481.  62  ;  Seaton  v.  Second  Municipality,  3  La.  R. 

t  Masterton  v.  Mayor  of  Brooklyn,  7  Hill,     44. 

1  Ilenson  i'.  Chastine,  3  Jones  (N.  C.)  L.  .550. 

2  Story  V.  The  New  York  &  Harlem  Railroad  Co.  2  Seld.  (N.  Y.)  85. 


CH.    XXV.]  APPROXIMATE   EVIDENCE.  699 

a  storm  occurs,  in  which  it  suffers  other  positive  damage  and  injury,  or  there  is 
a  jettison  thereof;  how  are  we  to  ascertain  what  diminution  is  to  be  attributed 
to  natural  waste  and  decay,  and  what  to  the  perils  of  the  seas  ?  or  what  was  its 
true  value  at  the  time  of  the  jettison  ?  There  can  be  no  positive  and  absolute 
certainty.  The  most  that  can  be  done  is  to  ascertain,  by  the  exercise  of  a  sound 
judgment,  what,  under  all  the  circumstances,  may  reasonably  be  attributed  to 
one  cause,  and  what  to  the  other.  Absolute  certainty,  in  cases  of  this  sort,  is 
unattainable.  All  that  we  can  arrive  at  is  an  approximation  thereto ;  and  yet 
no  man  ever  doubted  that  such  a  loss  must  be  paid  for  if  it  is  covered  by  the 
po^icy."  *  ^ 

*  Rogers  V.  Mechanics'  Ins.  Co.  1  Story,  303. 

1  Questions  as  to  the  competency  of  evidence  which  bear  directly  on  the  extent  of  the  re- 
covery constantly  arise.  So  in  an  action  of  trespass  for  a  wrongful  seizure  of  a  team  of  horses, 
in  wliich  exemplary  damages  were  claimed,  it  was  held  that  evidence  that  the  plaintiff  had  no 
actual  use  for  the  property  at  the  time  of  the  seizure,  was  properly  excluded.  Lynd  v.  Picket, 
7  Minn.  184.  So  in  an  action  by  a  woman  against  a  railroad  corporation  for  damages  for  per- 
sonal injuries,  neither  the  death  of  her  husband  from  the  same  cause,  nor  the  fact  that  she  has 
children  dependent  on  her  for  support,  is  admissible  to  increase  the  damages.  Shaw  v.  Boston 
&  Worcester  R.  R.  Co.  8  Gray  (Mass.),  4.5.  In  an  action  for  injuries  to  real  estate  in  the  pos- 
session of  one  holding  under  a  contract  of  purchase  and  entitled  to  the  possession  on  making 
certain  payments,  evidence  of  the  value  of  the  premises  and  of  the  cost  of  the  buildings 
thereon,  is  competent.  Honsee  v.  Hammond,  39  Barb.  (N.  Y.)  89.  In  a  suit  in  equity  to  re- 
cover damages  for  a  nuisance  to  the  plaintiff's  buildings  from  the  unlawful  erection  and  main- 
tenance of  a  steam  furnace,  as  well  as  an  injunction  against  their  continuance,  evidence  of  the 
general  character  of  the  neighborhood  is  competent  on  the  question  of  damages,  but  not  that 
a  particular  company  has  increased  the  rate  of  insurance  on  the  plaintiff 's  house.  Call  w. 
Allen,  1  Allen  (Mass.),  137.  But  further  illustrations  of  the  admissibility  of  evidence  as  to 
damages,  so  far  as  they  have  not  been  furnished  under  the  various  topics  of  this  book,  belong 
to  works  on  evidence. 


CHAPTER  XXVI. 

POWER    OF   THE    COUET    OVER   THE   SUBJECT    OF   DAMAGES. 

Respective  Powers  of  Court  and  Jury  over  the  Subject  of  Damages.  —  General 
Division  of  their  Functions.  —  The  Roman  System  in  this  Respect.  —  Curious 
Analogies  between  it  and  the  English  System.  —  General  Rule  with  us  is,  that 
the  Court  decides  Questions  of  Law,  and  the  Jury  Questions  of  Fact.  —  Ex- 
ceptions. —  Verdicts  against  the  Weight  of  Testimony.  —  Setting  aside  Ver- 
dicts on  Account  of  Excessiveness  of  Damages.  —  Power  of  the  Court  ex- 
ercised with  Hesitation  and  Reluctance.  —  Measure  of  Damages  a  Question  of 
Law. 

We  have  thus  stated  the  general  principles  which  control  the 
subject  of  compensation,  —  when  redress  is  governed  by  strict 
rules  of  law,  and  when  the  matter  is  said  to  be  left  to  the  dis- 
cretion of  the  jury. 

Relative  Power  of  Judge  and  Jury.  —  An  important  branch 
of  the  subject,  however,  still  remains.  As  the  final  decision  of 
every  case  involving  an  issue  of  fact,  is  pronounced  by  the  jury 
in  giving  their  verdict,  and  as  that  verdict  also  expresses  the 
amount  of  compensation  which  the  party  in  fault  is  to  make, 
it  is  plain  that  unless  the  court  retain  to  itself  some  control  over 
the  action  of  the  jury,  their  power  over  the  subject  of  remuner- 
ation would  be  practically  unlimited.  We  have,  then,  yet  to  see 
what  remedy  is  provided  if  the  jury  disregard  the  rules  laid 
down  for  their  government ;  and  this  necessarily  brings  us  to  a 
consideration  of  the  relative  powers  of  the  judge  and  the  jury. 

Analogies  of  Roman  Jurisprudence.  —  One  of  the  most  marked 
peculiarities  of  the  Anglo-American  system  of  jurisprudence, 
perhaps  its  most  striking  feature,  is  that  division  of  power  by 
which  the  decisions  of  questions  of  law  is  given  to  the  court, 
and  that  of  questions  of  fact  to  the  jury.  It  is  an  error  to  sup- 
pose that  this  division  is  altogether  peculiar  to  our  system,  or 
that  it  is  exclusively  of  English  origin.  The  recent  la- 
[595]  bors  of  the  German  scholars,  assisted  by  the  discovery  of 


CH.  XXVI.]  THE  ROMAN  PROCEDURE.  701 

Gains,  in  181G,  have  disclosed  the  true  nature  of  tlie  proced- 
ure by  the  formula  in  the  republican  period  of  the  Roman  juris- 
prudence ;  and  the  analogies  that  it  furnishes  on  the  present 
branch  of  our  subject  are  too  striking  to  be  overlooked. 

The  despotism  of  Augustus  and  his  successors  introduced 
changes  into  the  administration  of  justice  analogous  to  those 
which  it  wrought  in  the  general  frame-work  of  the  imperial  gov- 
ernment. Its  peculiar  characteristics  were  centralization  and 
despotism ;  it  established  in  all  branches  of  the  system  a  grada- 
tion of  ranks,  deriving  their  existence  from  and  dependent  upon 
the  will  of  the  emperor  alone,  and  it  destroyed  every  vestige  of 
popular  action.  The  first  and  most  important  of  these  changes 
in  the  machinery  of  the  law  was,  by  abolishing  the  judices  or 
jurors,  to  make  the  judges  absolute  masters  of  the  whole  cause, 
subject  only  to  the  right  of  appeal ;  which,  in  all  cases  I  think, 
might  carry  the  suitor  before  the  Ceesar  himself;  and  this  led 
directly  to  the  adoption  of  written  and  secret  instead  of  oral 
and  public  discussion.  Thus  was  produced  the  system  which, 
in  its  general  outline,  ruled  continental  Europe  almost  exclu- 
sively till  the  adoption  of  the  Code  Napoleon. 

But  the  plan  on  which  justice  was  administered  at  Rome  in 
the  time  of  Cicero,  perhaps  the  most  truly  great  period  of  its 
development,  was  very  different.  The  Romans  during  their 
republican  epoch  were  too  jealous  of  power  to  give  to  the  judi- 
ciary an  uncontrolled  authority  over  questions  both  of  law  and 
fact.  The  judicial  functions  were  divided,  as  with  us,  by  an  analo- 
gous, and  in  some  cases  by  an  identical  line.  The  suit  was 
instituted  before  a  magistrate,  usually  the  praBtor ;  and  the  pro- 
ceedings before  him  were  termed  in  jure.  Here  the  cause  of 
action  was  stated,  the  defense  set  up,  and  the  issue  whether  of 
law  or  of  fact  formed.  In  other  words,  the  pleadings  were  put 
in.  To  this  issue  was  then  joined  the  instructions  proper  for  its 
trial,  and  the  issue  and  instructions  together  were  termed  the 
formula.  A  judex  or  referee  was  then  appointed.  This  was 
called  datio  judids.  The  cause  was  then  turned  over  to  him : 
and  he  decided  the  question  submitted  to  him,  according  to  the 
instructions  contained  in  the  formula.  The  proceedings  before 
him  were  termed  injudido. 

Formulae.  —  Theformida  succeeded  the  old  leps  actmies, 
which  by  their  technical  severity  had   become  odious.  [596] 
These  forms  were  abolished  and  the  formida  introduced, 
by  the  Lex  JEhntia  ;  the  precise  date  of  which  is  uncertain,  but 
the  better  opinion  would  seem  to  be  that  it  was  passed  early  in 


702  POWER    OF   THE   COURT.  [CH.    XXV. 

the  seventh  century  of  the  city,  or  not  long  before  the  period 
of  Cicero.* 

The  formuke  were  of  two  kinds,  according  as  they  turned  on 
questions  of  law  or  questions  of  fiict,  — formula  in  jus  conceptcB, 
and  formulce  in  factum  conceptce.  A  single  instance  of  the  latter 
kind,  will  sufficiently  exhibit  their  character :  Judex  esto  ;  si 
paret  A.  Agerium  apud  N.  Negidium  mensam  argenteam  depo- 
suisse,  eamque  dolo  malo  N.  Negidii  A.  Agerio  redditam  non 
esse,  quanti  ea  res  erit  tantum  pecuniam  judex  N.  Negidium  A. 
Agerio  condemnato  ;  si  non  paret  absolve.  Which  may  be  ren- 
dered thus:  Let  this   cause   be  referred  to .     If  it  shall 

appear  that  A.  Agerius  deposited  a  silver  table  with  N.  Negidius, 
and  that  through  the  fraud  of  the  latter  it  has  not  been  returned 
to  the  owner,  let  the  judge  condemn  N.  Negidius  to  pay  to  A. 
Agerius  its  value.  If  it  shall  not  so  appear,  let  him  decide  for 
the  defendant.  This  is  precisely  such  a  charge  as  might  be 
given  to  a  jury  any  day  in  an  English  or  American  court. 

There  is  a  passage  in  Cicero,  where,  while  denouncing  the 
perversion  of  the  administration  of  justice  under  Verres  in 
Sicily,  he  gives  a  very  striking  picture  of  the  uses  and  abuses  of 
this  division  of  the  judicial  functions.!  "  No  one,"  he  exclaims, 
"  can  hold  or  recover  his  house,  his  estate,  his  paternal  property, 
if,  when  they  are  sued  for,  a  dishonest  prgetor  from  whom  there 
is  no  appeal,  appoints  any  one  whom  he  pleases  judge;  or  if  a 
profligate  and  worthless  judge  decides  what  the  praetor  orders ; 
or  if,  again,  the  praetor  so  frame  the  order  [formula)  that  not 
even  the  wisest  and  best  judge  can  decide  otherwise.  If,  for 
instance,  he  appoint  L,  Octavius  (an  unexceptionable  man)  ju- 
dex, with  the  formula.  If  it  shall  appear  that  the  property  in  contro- 
versy belongs  to  P.  Servilius,  order  him  to  deliver  it  to  Catidus,  —  is 
not  Octavius  forced  to  compel  Servilius  to  deliver  the  property 
to  Catulus,  although  it  do  not  belong  to  him  ? "  This  is 
[597]  precisely  what  might  occur  under  our  procedure,  if  the 
judge  were  corrupt;  and  without  any  corruption,  it  is 
precisely  the  error  which  the  system  of  exceptions  to  the  charge 
is  intended  to  correct. 

The  formula  thus  took  the  place  of  our  charge  to  the  jury. 
As  that  charge  does,  it  stated  hypothetically  the  verdict  or 
judgment  to  be  rendered,  and  gave  the  instructions  according 
to  which  the  issue  should  be  decided.  The  only  material  differ- 
ence is,  that  it  was  in  some  cases  given  before  the  witnesses 
were  heard.  The  state  of  facts  was  therefore  assumed  to  appeai- 
correctly  in  the  allegations  of  the  parties ;  and  the  instructions 

*  Gaius  by  HefF.  cap.  vii.  p.  23.  t  lu  Verr.  II.  1.  2,  §  12. 


en.    XXVI.]  ANGLO-SAXON    JUDICIAL   PROCEDURE.  703 

of  law  arising  on  these  facts  were  given  before  the  testimony 
was  taken.  This  may  now  appear  awkward  and  inconvenient, 
but  does  not  in  principle  differ  from  our  own  mode. 

Chances  Wrought  by  the  Empire.  —  This  system  was,  as  has 
been  already  said,  effaced  by  the  despotism  of  the  empire.  The 
independence  of  such  a  judiciary  was,  of  course,  hostile  to  that 
centralization  which  was  the  essence  of  the  imperial  organiza- 
tion ;  the  judices  were  abolished,  and  the  decision  of  the  entire 
cause  given  to  the  court  alone.  This  resulted  in  the  abolition 
of  all  oral  discussion ;  and  such  was  the  system  in  force  at  the 
time  when  the  Institutes  of  Justinian  condensed  and  embodied 
the  Roman  law.  Such,  too,  was  the  system  which  was  adopted 
when  civilization  resumed  its  progress  in  continental  Europe, 
and  so  it  remained  till  the  French  reforms  introduced  the  jury 
in  certain  cases. 

Origin  and  Development  of  the  Anglo-Saxon  Judicial  Pro- 
cedure. —  In  the  mean  time,  however,  in  the  island  inhabited  by 
that  great  people  from  whom  we  derive  our  origin,  a  system 
analogous  to  the  Roman  system  in  its  best  days  had  grown  up ; 
a  system  of  unknown  origin,  whether  a  relic  of  Roman  or  a 
child  of  German  liberty  it  is  perhaps  impossible  now  to  say,  but 
marked  by  very  peculiar  and  distinct  features,  and  claiming  as 
its  chief  merits  two  great  principles,  oral  and  public  discussion, 
and  a  division  of  the  judicial  functions  between  the  court  and 
the  jury.  It  is  of  this  latter  system  and  its  changes  that  I  now 
propose  to  speak  * 

*  Nor  is  the  division  of  power  between  the  several  German  authors,  among  the  best  of 
magistrate  and  the  judex  the  only  important  whose  works  are  Das  Romische  privat  Recht, 
analogy  between  the  Roman  and  the  English  by  Rein ;  Geschichte  des  Romischen  Rechts, 
systems  of  jurisprudence.  Two  different  and  by  Walter;  Gerichts  Verfassung  und  Prozess 
distinct  bodies  of  law,  as  distinct  and  different  des  sinkenden  Romischen  Rechts,  by  Bcth- 
as  common  law  and  equity  with  us,  existed  in  man  Hollweg ;  but  neither  in  England  nor 
the  early  days  of  the  Roman  system.  La  this  country  has  the  subject  received  any  care- 
civilization  Romaine,  says  Troplong,  s'est  ful  attention  since  the  discovery  of  Gaius,  in 
developpee  sous  I'influence  de  deux  elemens,  1816,  if  I  except  the  excellent  articles  of  Mr. 
qu'on  pourrait  en  quelque  sorte  appeler  de  Long,  in  the  recently  published  Dictionary  of 
premiere  et  de  seconde  formation,  et  qui  ont  Antiquities.  Mr.  Long  has  evidently  made 
vecu  ensemble  dans  une  longue  alternative  de  himself  master  of  the  subject ;  but  his  articles 
lutte  et  de  rapprochement,  juscjue  ce  que  le  are  only  disjectmnembra ;  and  I  could  wish  to 
tems   ait  amene  leur    fusion   plus  ou   moins  see  it  systematically  and  elaborately  discussed 

complete Sa  formule  la  plus  large  et  la  by  some  person  equally  tiimiliar,  if  possible, 

plus  haute,  c'est  le  jus  civile  et  Vaquitas,  sans  with  the  Roman  and  English  jurisprudence, 

cesse  opposes  I'un  k  I'autre,  comme  deux  prin-  It  is  one  full  of  interest  to  the  general  as  well 

cipcs  distincts  et  inegaux.     De  I'lnflnence  du  as  the  legal  scholar ;  it  is  calculated  to  throw 

Cfhristiiwisme  sur  le  Droit   Civil  des  Romains,  much  light  on  many  of  the  most  interesting 

par  M.  Troplong,  eh.  iii.  questions   in   the    annals    of   Rome,   and    is 

We  arc  sadly  in  want  of  some  competent  worthy  of  the  attention  not  less  of  the  histo- 

work  on  the  procedure  of  the  Roman  system,  rian  than  of  the  jurisconsult.     But  it  cannot 

showing  its  curious  analogies  with  our  own.  be  done  without  a  very  thorough  familiarity 

The  subject  has  been  elaborately  treated  by  with  the  actual  operation  of  both  systems,  as 


704  power  of  the  court.  [ch.  xxvi. 

Former  Indefiniteness  of  the  Separation  between  the  Prov- 
ince OF  THE  Court  and  that  of  the  Jury.  —  It  is  very  plain 
from  the  Ccarly  records  of  our  jurisprudence,  imperfect  as 
[598]  they  are,  that  the  relative  powers  of  the  court  and  the 
jury  were  at  first  very  loosely  defined,  and  that  many 
important  changes  and  modifications  have  been  from  time  to 
time  introduced.  So,  originally,  the  jurors  were  the  witnesses 
themselves,  and  found  their  verdict  on  their  own  knowledge  of 
the  facts.  And  in  a  very  large  class  of  cases,  not  falling  within 
those  in  which  exemplary  damages  may  be  claimed,  the  jury 
exercised  an  almost  unlimited  control  over  the  subject  of  re- 
muneration. On  the  other  hand,  the  court,  in  many  cases  of 
default  and  demurrer,  took  the  disposition  of  the  facts  of  the 
case  to  themselves,  and  pronounced  the  judgment.  Thus  it  was 
at  one  time  held  that  the  court  could  dispose  of  the  case  if  the 
plea  were  sent  to  be  tried  in  a  foreign  country,  for  the  jury 
there  had  not  full  knowledge  of  the  fact*  And  so,  where  the 
court  could  increase  damages,  it  was  held  they  could  mitigate 
them.f  So,  also,  in  an  early  author  it  is  said,  that  "  though  the 
justices  use  to  award  inquest  of  damages  when  they  give  judg- 
ment by  default,  yet  they  themselves  may  tax  the  dam- 
[599]  ages  if  they  will."  t  So,  too,  from  another  early  case, 
where  judgment  was  given  by  default,  it  seems  clear  that 
the  judges  originally  might  award  damages  without  the  inter- 
vention of  a  writ  of  inquiry.§  ^  So,  too,  on  demurrer,  and  in 
actions  of  debt,  the  sum  being  certain,  this  power  seems  to  have 
been  exercised  at  a  much  later  day.|| 

well  that  of  the  common  as  of  the  civil  law.  J  Viner  Abr.  Dam.  I. 

And  perhaps,   other   things   being    equal,   it  §  So,  says  Brooke,  Dam.  55,  Le   def.  fist 

would  be  most  satisfactorily  treated  by  one  defaut  et  le  pi.  recouer  dams,  a  lui,  il.  taxe  p. 

who  was  acquainted  with  the  practical  work-  Tcourt  et  no  dam.  come  il  cout,  quod  nota  q. 

ing  of  popular  institutions  in  a  state  of  ex-  le  court  m.  taxa  les  Damages. 

treme  development,  who  had  seen  and  under-  ||  Page  56  :  Car  sur  demur,  in  ley,  le  court 

stood  their  defects  and  their  advantages,  their  poet   agard   damag   sans    inquire   de   ceo    p. 

irregular   and   often   convulsive  action,  their  curiam  qd.  nota.      Vide  also,  pi.  59-68,  194. 

fierce  passions,  their  ^vast  energies,  and  gen-  See  Sayer  on  Damages,  ch.  xx.   105.     Hol- 

erous  impulses.  dipp   v.    Otway,   2   Sand.    102 ;    21    Car.   2 ; 

»  1  Rol.  572,  1.  50.  Sayer,  107. 

t  1  Rol.  572,  1.  25-28 ;  573,  1.  7. 

1  By  the  practice  which  prevailed  for  a  time,  the  court,  in  actions  for  injuries  to  the  person, 
itself  often  took  a  view  of  the  injury,  and  thereupon  increased  or  mitigated  the  damages  found 
by  the  jury  according  to  its  judgment.  See  the  cases  collected  in  RoUe's  Abr.  pp.  571,  572  ; 
also  Brooke,  Dam.  49,  86,  87,  vide  infra. 

And  as  lately  as  1856,  an  appeal  from  the  decision  of  the  circuit  judge  denying  a  motion  to 
increase  the  damages  super  visum  vulneris  was  formally  argued  before  the  South  Carolina  Court 
of  Appeals,  in  an  action  of  trespass  vi  et  armis,  M^liere  the  jury  had  awarded  the  moderate  sum 
of  $30  for  a  mayhem  whereby  one  of  the  plaintiff's  eyes  aiul  his  right  thumb  were  destroyed. 
The  court  held  that  the  old  common-law  practice,  on  which  the  motion  was  founded,  liad  been 
abrogated  by  disuse.  The  rule  gradually  developed  was  now  long  established,  that  in  all 
cases  sounding  in  damages,  these  damages  are  to  be  assessed  by  a  jury  under  the  direction  of 
the  court,  and  not  by  the  court  independently  of  the  jury.  McCoy  v.  Lemon,  11  S.  C.  Law 
R.  (Rich.)  105. 


CH.   XXVI.]  CONTRADICTIONS    OF   THE   EARLY    DECISIONS.  705 

The  following  case  shows  the  unsettled  condition  of  the  law 
in  the  respect  we  are  now  considering.  A  motion  being  made 
to  increase  damages,  because  the  jury  had  only  given  twelve 
pence,  whereas  the  plaintiflTs  arm  was  broke ;  Rolle,  C.  J.,  re- 
fused, because  it  did  not  appear  by  the  declaration  what  manner 
of  maiming  it  was  that  he  received.*  It  was  early  decided,  how- 
ever, that  the  justices  of  Nisi  Prius  could  not  increase  the  dam- 
ages,! nor  the  court  on  the  certificate  of  the  justices  of  Nisi 
Prius.t  ^  And  we  have  seen  other  cases,  where  the  jury  were 
declared  to  be  chancellors,  and  to  have  entire  power  over  the 
subject  of  relief  But  the  fluctuations  and  oscillations  of  the 
system  have  been  gradually  corrected  and  brought  under  fixed 
rules.  The  progress  of  time  and  the  accumulation  of  experience 
enable  us  now  to  draw  the  lines  of  demarkation  with  great  clear- 
ness, and  the  complication  of  the  machinery  disappears  w^hen 
carefully  examined. 

Questions  of  Laav  are  for  the  Court.  —  The  first  leading  prop- 
osition on  which  the  whole  structure  of  our  system  depends 
is,  that  the  court  decides  all  questions  of  law.  Statutes  are 
expounded,  contracts  interpreted,  written  instruments  construed, 
evidence  admitted  or  excluded,  by  the  court  and  by  the 
court  alone. §  And  it  necessarily  follows  from  this  that  [600] 
if  the  jury  disregard  the  instructions  of  the  court  on  any 
question  of  law,  their  verdict  will  be  set  aside.  It  is  by  the  ex- 
ercise of  this  power  alone  that  the  control  of  the  court  over 
questions  of  law  can  be  preserved. 

Questions  of  Fact  for  the  Jury.  —  The   correlative   propo- 

*  Jems  t>.  Lucas,  Style,  345  (1652).  verdict.      Thus,   where   a  verdict    had   been 

There  seem  to  be  some  cases  in  England  found  for  the  plaintiff  of  £150,  and  it  was 

where  the  court  still  exercises  a  direct  control  moved  to  increase  the  damages,  Lee,  C.  J., 

over  the  verdict.     So  in  some  instances,  on  said,  "  There  is  no  doubt  but  the  court  can 

bills  of  exchange,  the  court  assesses  the  dam-  increase  the  damages  in  this  case,  even  upon 

ages  without  the  intervention  of  a  jury.    Rob-  view  of  the  party  maimed."     But  they  held 

inson  v.  Reynolds,  2  (Q.  B.)  Adol.  &  El.  N.  the  .£150  sufficient,  and   dischared   the  rxile. 

S.  196  ;  and  see  Clement  v.  Lewis,  3  Br.  &  B.  Brown  v.  Sevmour,  1  Wilson,  5.^ 

297.  t  1  Rol.  573,  1.  30. 

So  in  cases  of  mayhem,  the  courts  exercised  J  1  Rol.  572,  1.  20. 

the  power  of  altering  and  even  increasing  the  §  U.  S.  i;.  Hodge  et  al.  6  Howard,  279. 

1  Except  on  a  view  of  the  injury.     1  Rol.  572,  1.  20. 

The  Revised  Statutes  of  Indiana  (2  Rev.  Stat.  115,  §  340)  have  abrogated  the  common-law 
rule  that  in  an  action  of  tort  the  court  cannot  assess  the  damages.  Under  that  provision,  the 
right  to  a  jury  trial  of  the  question  of  damages  is  waived  by  not  appearing.  Langdon  r.  Bul- 
lock, 8  Ind.  341 .  And  in  Louisiana  the  Supreme  Court  have  power  to  increase  the  damage 
on  appeal.     See  Donnell  v.  Sandford,  11  La.  Ann.  645. 

-  So  where  in  such  a  case  the  jury  gave  twenty  marks  damages,  on  a  view  in  court  and  in- 
formation of  the  surgeons  present,  the  court  increased  the  damages  Ijccause  the  party  lost  tiie 
use  of  his  arm.    Freeman  i'.  Ti-evers,  1  Rol.  572. 
45 


706  POWER   OF   THE    COURT.  [CH.    XXVI. 

sition  to  this  is,  that  the  jury  decides  all  questions  of  fact. 
AVhere  the  facts  are  admitted,  the  rights  of  the  parties  must 
depend  on  a  pure  question  of  law,  and  they  are  of  course  under 
the  control  of  the  court ;  but  the  instant  that  an  issue  of  fact  is 
presented,  the  decision  of  the  cause  passes  from  the  court  to  the 
jury.^  The  principle  is,  indeed,  carried  so  far,  that  in  some  States 
of  the  Union,  as  in  Texas,  the  court  is  not  even  allowed  to 
charge  them  as  to  the  weight  of  testimony.*  The  rule  giving 
the  jury  the  decision  of  all  questions  of  fact,  if  no  exception 
were  admitted,  would,  as  has  been  said,  effectually  make  the  jury 
masters  of  the  whole  matter  in  controversy.  Various  modifica- 
tions have  therefore  been  introduced  to  it,  which  we  now  pro- 
ceed to  consider. 

Modifications.  —  Setting  Aside  Verdict.  —  In  the  first  place, 
a  verdict  may  be  set  aside  because  it  is  against  the  weight  of 
testimony.  This  power  is,  however,  very  sparingly  exercised  ; 
and  on  mere  questions  of  fact  the  court  always  interferes  with 
great  hesitation  and  reluctance.  So,  a  verdict  will  not  be  dis- 
turbed merely  because  it  appears  that  the  jury  have  reasoned 
incorrectly.  In  a  recent  case  in  the  English  Common  Pleas, 
Maule,  J.,  said,  "  We  are  not,  however,  to  set  aside  a  verdict 
because  the  jury,  one  or  all  of  them,  may  have  reasoned  incon- 
clusively. If  such  a  doctrine  were  to  prevail,  scarcely  any  ver- 
dict would  stand.  The  trial  by  jury  is  not  founded  upon  a  sup- 
position so  absurd  as  that  the  whole  twelve  will  reason  infallibly 
from  the  premises  to  the  conclusion."  t  "^ 

*  NelB  V.  The  State,  2  Texas,  282.  t  Smith  v.  Dobson,  3  Scott  N.  R.  336. 

1  "  I  doubt  much,"  saj'S  Mr.  Justice  Jackson,  in  delivering  an  opinion  in  the  Court  of  the 
Irish  Exchequer  Chamber,  "  whether  in  any  case  sounding  in  damages,  for  an  acknowledged 
breach  of  covenant,  the  judge  ought  to  take  it  on  himself  to  direct  a  verdict  for  nominal  dam- 
ages."    Strong  V.  Kean,  13  Ir.  Law  R.  93. 

^  A  late  case  in  the  English  Court  of  Exchequer  illustrates  the  jury's  command  of  the  dam- 
ages, where  no  rule  of  law  is  violated. 

The  plaintiff,  who  claimed  special  damage  from  a  carrier  for  non-delivery  of  goods,  had 
sold  them  for  as  much  as  he  could  have  obtained  if  there  had  been  no  delay,  and  the  defend- 
ant paid  into  court  £10,  which  the  court  considered  ample  to  cover  the  expense  of  a  journey 
he  had  taken  to  look  after  the  goods,  and  all  his  actual  damages.  The  jury  having  found  a 
verdict  for  £b  more  than  had  been  paid  in,  a  motion  was  made  to  set  it  aside  as  pen'crse. 
(The  damages  being  under  £20,  the  motion  could  not  under  the  English  practice  be  enter- 
tained on  the  ground  that  they  were  excessive.)  The  court,  although  considering  the  amount 
decreed  clearly  too  large,  reluctantly  refused  to  disturb  the  verdict,  as  the  question  whether 
the  amount  paid  into  court  was  a  sufficient  compensation  for  the  plaintiff's  pecuniary  loss 
had  been  properly  left  to  the  jury,  and  the  verdict  was  not  contrary  to  any  direction  of  the 
judge  at  Nisi  Prius.  Adams  v.  The  Midland  R.  Co.  31  L.  J.  R.  N.  S.  (Exch.)  35.  See  as  to 
the  Ijoundary  between  the  power  of  the  court  and  that  of  the  jurv  on  this  subject,  Smith  v. 
Symonds,  1  L.  T.  (N.  S.)  299. 

It  is  hardly  necessary  to  say,  that  as  a  necessary  consequence  of  the  control  of  the  court  over 
questions  of  law,  if  the  court  misinstruct  the  jury  on  a  point  material  to  the  measure  of  dam- 
ages as  well  as  the  right  of  recovery,  the  judgment  will  be  set  aside.  So  in  a  suit  for  the  con- 
version of  a  promissory  note,  an  instruction  that  if  the  maker  were  insolvent  and  had  no 


CII.    XXVI.]  EXCESSIVE   DAMAGES.  707 

So  again,  -where  the  juclf^e  M'ho  tries  a  cause  in  trespass  rec- 
ommends a  verdict  for  nominal  damages,  but  the  jury  c-ive 
substantial  damages  (£5),  such  a  verdict  will  not  be  set  aside  as 
perverse*  ^  And  this  rule  has  been  repeatedly  affirmed  in  this 
country.  So  in  Mississippi,  it  has  been  decided  that  a  verdict 
will  always  be  permitted  to  stand  unless  it  is  opposed  by 
a  decided  preponderance  of  the  evidence,  or  is  based  on  [601] 
no  evidence  whatever ;  t  and  in  Texas,  that  the  verdict  of 
a  j\ny  founded  on  conflicting  testimony  will  not  be  set  aside 
unless  it  be  very  ajDparent  that  they  decided  wrong.t 

Excessive  Damages. — The  court  again  holds  itself  at  liberty 
to  set  aside  verdicts  and  grant  new  trials,  in  that  class  of  cases 
where  there  is  no  fixed  legal  rule  of  compensation,  whenever 
the  damages  are  so  excessive  as  to  create  the  belief  that  the 
jury  have  been  misled  either  by  passion,  prejudice,  or  ignorance.^ 
But  this  power  is  very  sparingly  used,  and  never  except  in  a 
clear  case.^     So  in  an  action  for  malicious  indictment  of  the 

*  Chilvers  v.  Greaves,  5  Man.  &  Gr.  578.  t  Perry  v.  Eobinson,  Adin'x,  2  Texas  E. 

t  Cicely  v.  State  of  Mississippi,  13  Sraedes    490. 
&  M.  202. 

property  subject  to  execution,  then  the  note  was  of  no  value,  and  the  defendant  not  liable,  was 
erroneous,  and  a  new  trial  therefore  granted.  Pratt  v.  Boyd,  17  Ind.  232.  The  practice  is  too 
familiar  to  need  further  illustration. 

1  See  Adams  v.  The  Midland  R.  Co.  preceding  note. 

2  This  ])ractice  hardly  needs  the  citation  of  authorities,  but  some  of  the  later  ones  are  sub- 
joined. The  court  exercise  the  power  wherever  the  injury  is  a  matter  of  computation  or  within 
a  pecuniarv  estimate,  and  they  are  satisfied  the  damages  are  excessive.  Murrav  v.  Hudson  K. 
R.  Co.  47  'Barb.  (N.  Y.)  196  ;  The  Terre  Haute,  Alton,  and  St.  Louis  R.  R.  Co.  v.  Vanatta, 
21  111.  188;  Clapp  v.  The  Hudson  River  Railroad  Co.  19  Barb.  (N.  Y.)  461  ;  Creed  v.  Fisher, 
26  Eng.  L.  &  E.  384;  Kountz  v.  Brown,  16  B.  Monr.  (Ky.)  577  ;  Treanor  v.  Donahoe,  9 
Cush.  (Mass.)  228;  Nicholson  v.  The  New  York  &  New  Haven  Railroad  Co.  22  Conn.  74; 
Bell  V.  Morrison,  27  Miss.  68  ;  Lang  v.  Hopkins,  10  Ga.  37  ;  Duffield  v.  Tobin,  20  Ibid.  428; 
Marshall  v.  Gunter,  6  Rich.  (S.  C.)  L.  419.  See  also,  Wilcox  v.  Green,  23  Barb.  (N.  Y.)  639  ; 
Potter  V.  Thompson,  22  Ibid.  87.  Compare  Lewis  v.  Black,  27  Miss.  (5  Cush.)  425;  Payne 
t;.  The  Pacific  Mail  Steamship  Co.  1  Cal.  33  ;  George  v.  Law,  Ibid.  363  ;  M'Daniel  v.  Baca,  2 
Ibid.  326;  Potter  v.  Searl,  5  Ibid.  410;  Parish  v.  Reigle,  11  Gratt.  (Va.)  697;  DeBriar  v. 
Mintum,  1  Cal.  450;  Eastman  v.  Mavor,  &c.  of  New  York,  5  Robertson  (N.  Y.  Superior), 
389 ;  Chicago  &  R.  I.  R.  R.  Co.  r.  McKean,  40  111.  218. 

3  Saunders  v.  The  London  and  North  Western  Railway  Co.  2  L.  T.  R.  (N.  S.)  153  ;  Waters 
V.  Bristol,  26  Conn.  398 ;  Letton  v.  Young,  2  Mete.  (Ky.)  558  ;  Chapman  v.  Dodd,  10  Minn. 
350;  St.  Martin  v.  Desnoyer,  1  Minn.  156;  The  City"of  St.  Paul  v.  Kurby,  8  Minn.  154; 
Beaulicu  r.  Parsons,  2  Miiin.  37  ;  Goetz  v.  Ambs,  27  Mo.  28 ;  Weaver  v.  Page,  6  Cal.  681 
Alexander  v.  Thomas,  25  Ind.  268;  Scherpf  v.  Szadeczkv,  4  E.  D.  S.  (N.  Y.)  110;  Danville 
L.  &  N.  Turnpike  Co.  v.  Stewart,  2  Mete.  (Ky.)  119;  Prvor's  Appeal,  5  Abbott's  (N.  Y.)  Pr. 
R.  272  ;  Blum  v.  Higgins,  3  Ibid.  104  ;  Fletcher  v.  Tavleur,  19  C.  B.  21  ;  33  Eng.  L.  &  E. 
187  ;  Woodson  v.  Scott,  20  Mo.  272;  Barth  i'.  Mcrritt,'  Ibid.  567';  Wells  v.  Sanger,  21  Mo. 
354  ;  Sexton  i-.  Brock,  15  Ark.  (Barb.)  345  ;  Pleasants  v.  Heard,  Ibid.  403  ;  Creed  v.  Fisher,  9 
Exch.  472;  Marshall  v.  Gunter,  6  Rich.  (S.  C.)  L.  419;  Wolff  v.  Cohen,  8  Ibid.  144;  Bar- 
nette  v.  Hicks,  6  Tex.  352;  M'Gehee  v.  Shafer,  9  Tex.  20;  Hillebrant  v.  Brewer,  Ibid.  45  ; 
Potter  V.  Thompson,  22  Barb.  (N,  Y.)  87  ;  Oldfield  v.  The  New  York  &  Harlem  Railroad  Co. 
3  E.  D.  Smith's  (N.  Y.)  C.  P.  R.  103;  Chenowith  v.  Hicks,  5  Ind.  224;  Spencer  v.  M'Mas- 
ters,  16  111.  405.  Compare,  however,  Blanchard  v.  Morris,  15  111.  35;  Butler  v.  Mehrling, 
Ibid.  488 ;  Travis  i'.  Barger,  24  Barb.  (N.  Y.)  614.  See  the  cases  on  this  subject  reviewed,  1 
Grab.  &  W.  on  New  Trials,  409-441. 

In  Collins  v.  The  Albany  and  Schenectady  E.  E.  Company,   12  Barb.  (N.  Y.)  492,  the 


708  POWER    OF   THE    COURT.  [CH.    XXVI. 

plaintiff  for  perjury,  where  a  verdict  of  £400  was  obtained,  on 
a  rule  for  new  trial  it  was  insisted  that  the  verdict  was  excessive. 
But  it  was  refused,  and  Lord  Mansfield  said,  "  New  trials  are  not 
to  be  granted  in  this  class  of  cases  without  very  strong  grounds 
indeed,  and  such  as  carry  internal  evidence  of  intemperance  in 
the  minds  of  the  jury."  *  ^ 

The  doctrine  has  been  repeatedly  affirmed  in  this  country. 
So  Mr.  J.  Story  has  decided,  that  in  cases  of  tort  the  verdict  will 
not  be  disturbed  unless  it  is  so  excessive  or  outrageous  with 
reference  to  all  the  circumstances  of  the  case,  as  to  demonstrate 
that  the  jury  have  acted  against  the  rules  of  law,  or  have  suf- 
fered their  passions,  their  prejudices,  or  their  perverse  disregard 
of  justice,  to  mislead  them.f  So  again,  the  same  sagacious  judge 
has  said,  "  A  court  of  law  will  not  set  aside  a  verdict  upon  the 
ground  of  excessive  damages,  unless  in  a  clear  case  where  the 
jury  have  acted  upon  a  gross  mistake  of  facts,  or  have  been 
governed  by  some  improper  influence  or  bias,  or  have  disre- 
garded the  law."  X  Again,  in  another  case  Mr.  Justice  Story 
said,  "  The  damages  are  certainly  higher  than  what,  had  I  sitten 
on  the  jury,  I  should  have  been  disposed  to  give ;  and  I  should 

now  be  better  satisfied  if  the  amount  had  been  less 

It  is  one  thing  for  a  court  to  administer  its  own  measure  of  dam- 
ages in  a  case  properly  before  it,  and  quite  another  thing 
[602]  to  set  aside  the  verdict  of  a  jury  merely  because  it  ex- 
ceeds that  measure.  The  court,  in  setting  aside  a  verdict 
for  excessive  damages,  should  clearly  see  that  they  are  exces- 
sive ;  that  there  has  been  a  gross  error ;  that  there  has  been  a 
mistake  of  the  principles  upon  which  the  damages  have  been 
estimated,  or  some  improper  motives,  or  feelings,  or  bias,  which 

*  Gilbert  v.  Burtenshaw,  Cowper,  230.  %  Wiggin  v.  Coffin,  3  Story,  1. 

t  Whipple  V.  Cumberland  Manufg.  Co.  2 
Story,  661. 

plaintiff  had  been  injured  by  a  railroad  collision,  through  negligence  of  those  in  charge  of  the 
train,  without,  however,  any  gross  feult.  The  jury  found  a  verdict  for  $11,000.  The  Supreme 
Court  ordered  a  new  trial  on  the  ground  of  excessive  damages,  remarking,  with  reference  to 
the  statute  of  New  York  (of  1849)  allowing  the  personal  representatives  of  one  whose  death  is 
caused  by  the  negligence,  etc.,  of  another,  to  maintain  an  action  for  damages  to  the  limit  of 
$5,000,  as  follows  :  "  The  damages  which  the  jury  have  seen  fit  to  award  to  the  plaintiff  are 
moi-e  than  twice  as  much  as  could  have  been  awarded  if  the  accident  had  proved  fatal  to 

the  plaintiff.     The  legislature has   limited   the  recovery  in   such  cases    to   $5,000. 

There  is  certainly  great  plausibility  in  the  argument  that  the  defendants  ought  not  to  be 
liable  for  a  greater  amount  of  damages  in  this  case  than  they  would  have  been  if  the  plaintiff 
bad  actually  lost  his  life."  See  also,  Murray  v.  The  Hudson  K.  R.  Co.  47  Barb.  (N.  Y.) 
196. 

This  argument  seems,  however,  to  limit  the  plaintiff's  recovery  in  all  cases  of  personal  in- 
juries to  $5,000.  The  act  of  1848,  as  we  have  seen,  authorized  a  recovery  in  favor  of  the  per- 
sonal i-epresentatives  of  a  person  killed  by  the  negligent  act  of  another,  on  the  ground  of  their 
pecuniary  loss,  and  the  purpose  of  the  act  of  1849  is  to  limit  this  recovery,  not  the  estimate  to 
be  placed  upon  the  injury  inflicted  on  the  sufferer. 

1  See  Boyoe  v.  Cal.  Stage  Co.  25  Cal.  460. 


CH.  XXVI.]  EXCESSIVE   DAMAGES.  709 

have  influenced  the  jury Upon  a  mere  matter  of 

damages,  where  diflcrent  minds  might  and  probably  would  arrive 
at  different  results,  and  nothing  inconsistent  with  an  honest 
exercise  of  judgment  appears,  I,  for  one,  should  be  disposed  to 
leave  the  verdict  as  the  jury  found  it."  *  ^  So  in  New  Jersey, 
too,  it  has  been  declared  that  the  court,  in  actions  of  trespass 
for  personal  torts,  where  damages  can  be  gauged  by  no  fixed 
standard,  but  necessarily  rest  in  the  sound  discretion  of  the  jury, 
interferes  with  a  verdict  on  the  mere  ground  of  excessive  dam- 
ages with  reluctance,  and  never  except  in  a  clear  case.f 

Although  it  is  conceded  that  the  courts  have  the  power  of 
granting  a  new  trial  in  cases  of  crhn.  con.,  still  it  seems  that  the 
power  has  never  been  exercised,  t^  Even  in  cases  where 
rules  of  law  have  been  disregarded,  or  where  for  any  rea-  [603] 
son  the  verdict  cannot  be  supported,  the  power  of  the 
court  to  set  aside  the  decision  of  the  jury  will  not  be  exercised 
without  regard  to  the  justice  of  the  case.  So,  where  a  verdict 
was  obtained  for  principal  and  interest,  as  to  which  latter  the 
defendant  was  clearly  liable,  but  there  being  no  count  adapted 
to  it  the  verdict  was  not  strictly  regular,  the  court  nevertheless 
refused  to  set  it  aside,  saying,  "  In  motions  for  new  trials,  the 
court  may  fliirly  endeavor  to  do  that  which  advances  the  justice 
of  the  case ;  and  b}^  refusing  this  rule  we  only  save  the  defend- 
ant from  paying  with  the  tremendous  amount  of  accumulated 
costs,  what  he  injustice  is  bound  to  pay  at  once."§  ^ 

Option  in  some  Cases  given  Plaintiff  of  reducing  Verdict.  — 
Thu^,  again,  where  the  jury  have  given  such  excessive  dam- 

*  Thurston  v.  Martin,  5  Mason,  197.  %  Duberly  v.  Gunninfc,  4  T.  R.  651 ;  Smith 

t  Berry  v.  Vreeland,  1  Zabriskie,  183.  v.  Masten,  15  Wend.  270. 

§  Harrison  i;.  Allen,  2  Bing.  4. 

1  In  an  action  for  damages  against  a  railroad  company  by  a  woman  who  had  been  badly  in- 
jured by  being  struck  by  a  locomotive  engine,  and  whose  health  and  memory  had  been  much 
impaired  in  consequence,  the  plaintiff  obtained  successive  verdicts  of  $15,000,  $18,000,  and 
$22,250.  The  two  first  having  been  set  aside  for  erroneous  instructions  to  the  jury,  the  court 
refused  to  disturb  the  last,  on  the  ground  of  the  damages  being  excessive.  Shaw  i'.  Boston  & 
Worcester  R.  R.  Co.  8  Gray  (Mass.),  45.  "  In  all  cases,"  said  the  late  IMr.  Justice  Wilde  in 
the  ease  of  Worster  v.  Proprietors  of  Canal  Bridge,  16  Pick.  547,  "  where  there  is  no  rule  of 
law  regulating  the  assessment  of  damages,  and  the  amount  does  not  depend  on  computation, 
the  judgment  of  the  jury  and  not  the  o|)inion  of  the  court,  is  to  govern,  unless  the  damages  are 
so  excessive  as  to  warrant  the  belief  tluit  the  jury  must  have  been  influenced  by  partiality  or 
prejudice,  or  have  been  misled  by  some  mistaken  views  of  the  merits  of  the  case."  See  Kelly 
V.  Sherlock,  1  L.  R.  (Q.  B.)  686,  infra. 

2  A  vei-dict  against  defendant  in  an  action  for  enticing  away  plaintiff's  wife  will  not  be  set 
aside  as  excessive,  unless  facts  appear  which  show  that  the  jury  were  actuated  by  improper 
motives.  And  the  court  will  not  infer  this  merelv  frcmi  the  aniount  of  damages  awarded. 
Scherpf  V.  Szadeczky,  1  Abbott's  (N.  Y.)  Pr.  R.  366.  See  also,  many  cases  of  crim.  con.  and 
seduction  reviewed  in  Travis  v.  Rarger,  24  Barb.  (N.  Y.)  614. 

3  And  where  interest  is  not  recoverable,  the  court  may  direct  it  to  be  remitted.  Connelly  v. 
M'Neil,  2  Jones  (N.  C.)  L.  51. 


710  POWER    OF   THE    COURT.  [CH.    XXVI. 

ages  that  the  court  feel  bound  to  set  aside  the  verdict,  they  will, 
instead  of  simply  ordering  a  new  trial,  give  the  plaintiff  the  op- 
tion of  reducing  the  verdict  to  the  sum  which  the  court  con- 
siders reasonable,  and  on  his  remitting  the  excess  will  deny  the 
motion  for  a  new  trial,  and  this  in  actions  of  tort  as  well  as  on 
contracts.*^  Or  the  court  may  send  the  cause  back  to  a  second 
jury  on  the  quantum  of  damages  alone.f^  But  in  Texas,  this 
power  of  reducing  the  verdict  by  the  action  of  the  court,  has 
been  limited  to  those  cases  where  the  measure  of  damages  is 
matter  of  law,  upon  the  ground t  that  in  other  cases  the  court 
has  no  right  to  substitute  its  opinion  for  that  of  the  jury. 

Small  Damages.  —  The  forbearance  of  the  court  to  interfere 
with  the  jury  is  so  great  that,  in  actions  of  tort,  the  general 
rule  is,  that  a  new  trial  will  not  be  granted  for  smallness  of  dam- 
ages.§^  But  it  seems  that  if  the  jury  so  far  disregard  the  jus- 
tice of  the  case  as  to  give  no  damages  at  all  where  some  redress 
is  clearly  due,  the  court  will  interpose.*     So  where,  in  case  for 

*Diblin  v.  Murphy,  3  Sandford  S.  C.  19;  Mauricet  v.  Brecknock,  2  Dong.  509;    Hay- 

Gnerry  v.  Keston,  2  Kich.  R.  507 ;  Young  v.  ward  v.  Newton,  2  Strange,  940  ;   Barker  v. 

Englehard,  1  Howard  Miss.  R.  19.  Dixie,  2  Strange,  1051  ;    21   Vin.  Abr.   486, 

t  Boyd  w.  Brown,  17  Tick.  453.  Trial  Y.  g. ;  Lord  Gower  v.  Heath,  Barnes' 

t  Thomas  v.  Womack,  13  Texas,  580,  per  Notes,  445  ;  Regina  v.  Justices  of  West  Rid- 

Wheoler,  J.  ing,  19  B.  624,  631. 

§  Lord  Townshend  v.  Hughes,  12  Mod.  150 ; 


1  Collins  V.  The  Albany  &  Schenectady  Raih'oad  Co.  12  Barb.  (N.  Y.)  492.  Compare 
George  v.  Law,  1  Cal.  363 ;  Doyle  v.  Dixon,  97  Mass.  208. 

^  In  Louisiana  tlie  Sujjreme  Court  has  power  to  render  judgment  absolutely  for  the  reduced 
amount.     See  Black  v.  The  Carrolton  Railroad  Co.  10  La.  Ann.  33. 

3  Ilayward  v.  Newton,  2  Str.  939  ;  Kelly  v.  Sherlock,  1  L.  R.  (Q.  B.)  686 ;  35  L.  J.  (Q.  B.) 
209  ;  12  Jur.  (N.  S.)  937  ;  Howard  v.  Barnard,  11  C.  B.  6.53  ;  20  Eng.  L.  &  E.  286  ;  Apps  v. 
Day,  14  C.  B.  112 ;  26  Eng.  L.  &  E.  335 ;  Bradlaugh  v.  Edwards,  11  C.  B.  (N.  S.)  377  ;  Gibbs 
V.  tunaley,  1  C.  B.  640. 

But  the  power  exists,  and  is  sometimes,  though  very  rarely  exercised,  as  where  the  action  is 
for  a  debt,  and  the  verdict  is  less  than  the  amount  due ;  or  where  in  trespass  or  trover  it  is  less 
than  the  value  of  the  property  taken,  or  where  in  an  action  for  a  personal  injury  it  is  less  than 
the  medical  expenses  necessarily  incurred  and  paid,  or  is  so  clearly  inadequate  to  the  damage 
sustained  as  to  be  contrarv  to  evidence.  Porteous  v.  Hazel,  1  Harper,  332 ;  Tedd  v.  Douglas, 
5  Jur.  (N.  S.)  1029  ;  Bobbins  v.  Hudson  R.  R.  Co.  7  Bosw.  1.  See  Wilson  v.  Hicks,  26  L.J. 
Exch.  242  ;  40  Eng.  L.  &  E.  571,  where  this  power  was  exercised  conditionally  on  the  plain- 
tiff's relinquishing  the  costs  of  the  first  trial.  In  Rendall  v.  Hayward,  5  Bing.  (N.  C.)  424, 
however,  it  was  said  by  Tindal,  C.  J.,  that  "  the  courts  never  grant  a  new  trial  because  the 
damages  are  low,  unless  there  has  been  some  mistake  in  point  of  law  on  the  part  of  the  judge 
who  presided,  or  in  the  calculation  of  figures  by  the  jury."  See  also,  Hayward  v.  Newton, 
2  Strange,  939,  supra,  and  note  1,  next  page. 

*  A  new  trial  will  not  be  granted  on  the  ground  tliat,  from  the  small  amount  of  damages 
the  jury  must  have  come  to  a  compromise,  unless,  from  the  circumstances  of  the  case,  it  is 
evident  that  there  has  been  a  total  refusal  on  the  part  of  the  jurors  to  discharge  their  duty,  and 
the  verdict  is  necessai-ily  wholly  inconsistent.  Richards  v.  llose,  24  Eng.  L.  &  E.  406.  The 
court  may  grant  a  new  trial,  as  well  where  the  damages  are  inadequate  as  where  they  are  ex- 
cessive, if  the  case  be  such  as  clearly  to  indicate  that  the  jury  have  acted  under  the  influence  of 
partiality,  bias,  or  a  perverted  judgment.  Accordingly,  where  a  recovery  was  had  in  an  action 
for  the  defendant's  negligence,  whereby  the  plaintiff  was  injured  and  sustained  severe  bruises 
upon  his  mouth  and  face,  and  one  of  his  teeth  was  knocked  out,  it  was  held,  that  a  verdict 
of  the  jury  for  $10  only,  was  grossly  inadequate,  and  that  the  plaintiff  was  entitled  to  a 
new  trial  on  payment  of  costs,  unless  the  defendant  should  consent  to  a  material  increase 
on  the  amount  of  damages  found.  Richards  v.  Sandford,  2  E.  D.  Smith's  (N.  Y.)  C.  P.  R. 
349. 


CH.    XXVI.]  MODE    OF    ARRmNG   AT   VERDICT.  711 

negligence  for  defendant's  servant  driving  against  the  plaintiff, 
it  appeared  that  the  plaintiff's  thigh  was  broken,  and  consider- 
able expense  incurred  for  surgical  treatment.  The  plaintiff  ob- 
tained a  verdict;  damages  one  fart  Jiing .  A  new  trial  was  granted 
on  payment  of  costs;  and  Lord  Denman  said,  "A  new  trial  on 
a  mere  difference  of  opinion  as  to  amount,  may  not  be  grant- 
able;  but  here  are  no  damages  at  all."*^ 

The  Modes  of  Computing  Damages  allowed  the  Jury.  —  A 
question  has  presented  itself  as  to  the  mode  in  which  the  jury 
may  arrive  at  the  quantum  of  damages  in  cases  where  they  are 
greatly  divided  on  the  question  of  amount ;  and  it  has  been  de- 
cided that  if  they  agree  beforehand  that  each  juror  shall  mark  the 
sum  to  which  he  conceives  the  plaintifi'  entitled,  and  that  the 
total  of  these  amounts  divided  by  twelve  (the  number  of  jur- 
ors) shall  be  the  verdict,  the  whole  proceedings  will  be  void, 
and  a  new  trial  will  be  ordered,  for  the  reason  that  the  whole 
thing  is  a  mere  matter  of  chance.  So  in  New  York,  it  has  been 
decided  that  the  jury  will  not  be  allowed  to  arrive  at  a  verdict 
by  each  of  the  jurors  marking  down  a  particular  sum  and  then 
dividing  the  whole  amount  by  the  number  of  jurors ;  and  on 
assignment  of  error  in  fact,  the  judgment  for  this  cause  will  be 
reversed.!^  So  in  England,  the  court  will  not  permit 
the  jury  to  arrive  at  a  verdict  by  splitting  a  difference.^  [604] 
But  if  the  same  course  be  taken  in  order  to  ascertain 
with  more  accuracy  how  the  jury  stands,  the  rule  is  different ; 
and  it  has  been  held  not  improper  for  them  to  arrive  at  their 
verdict  by  each  marking  a  sum  and  dividing  it  by  twelve,  pro- 
vided they  do  not  previously  bind  themselves  to  adhere  to  the 
result  of  the  arithmetical  computation.§  ^ 

*  Armytage  v.  Haley,  4  Q.  B.  917.  See  also,        t  Harvey  v.  Rickett,  15  J.  R.  87,  and  Eob- 
Cook  V.  Beal,  1  Ld.  R.  176  ;  S.  C.  3  Salk.  115  ;     erts  v.  Failis,  1  Cowen,  238. 
Brown  v.   Seymour,    1   Wils.   5  ;    Austin   v.         %  Hall  v.  Poyser,  13  Mees.  &  W.  600. 
Hilliers,  Hard".  408.  §  Fowler  v.  "Colton,  Wisconsin  Reports,  by 

Burnett,  175. 

1  See  Nicholson  v.  N.  Y.  and  N.  H.  R.  Co.  22  Conn.  84.  But  although  in  such  a  case,  the 
injury  might  seem  to  warrant  more  than  nominal  damages,  yet  if  the  judge  who  tried  the  cause 
is  not  dissatisfied  with  the  verdict,  or  there  is  no  reason  to  suppose  the  jury  were  actuated  by 
wrong  motives,  or  if  another  verdict  would  probably  be  so  small  that  a  new  trial  would  not  be 
worth  while  in  view  of  the  additional  costs,  it  will  not  be  granted.  Howard  v.  Barnard,  1 1  C. 
B.  653,  and  Gibbs  v.  Tunaley,  1  C.  B.  640. 

2  So  in  New  Hampshire ;  Boynton  v.  Trumbull,  Supreme  Ct.  N.  H.  4  Am.  Law  Reg.  (N.  S.) 
512.  In  Kentucky;  Allard  i;.  "Smith,  2  Mete.  (Ky.)  297  ;  and  in  California;  Turner  v.  The 
Tuolumne  Water  and  Mining  Company,  25  Cal.397  ;  Boyce  v.  The  California  Stage  Co.  25 
Cal.  4G0 ;  Wilson  v.  Berryman,  5  Cal.  44.  So  it  seems  it  is  error  to  charge  the  jurv  that  if 
witnesses  diU'er  as  to  value,  an  average  of  their  estimate  may  be  taken.  Thomas  v.  Dickinson, 
2  Kern.  (N.  Y.)  364.     (Per  Johnson,  J.) 

**  And  where  the  jury  merely  take  that  means  of  arriving  at  an  amount,  leaving  the  result 
to  be  agreed  to  or  dissented  from  when  known,  it  is  held  not  to  vitiate  the  verdict.  St.  Mar- 
tin V.  Desnoyer,  1  Minn.  156  ;  Dana  v.  Tucker,  4  J.  R.  487  ;  Wilson  v.  Berryman,  5  Cal.  44.   . 


712  POWER    OF   THE    COURT.  [CH.    XXVI. 

The  Measure  of  Damages  usually  a  Matter  of  Law.  —  To 
the  other  rules  which  we  have  thus  briefly  enumercated,  intended 
to  maintain  the  dignity  of  the  law  and  the  harmony  of  the  ad- 
ministration of  justice,  is  finally  to  be  added  that  to  which  we 
have  had  so  frequently  to  refer  in  these  pages  —  that  the  meas- 
ure of  damages  is  a  matter  of  law  to  be  decided  by  the  court ; 
and  that  whenever  it  shall  appear  that  the  jury  have  disre- 
garded the  instructions  of  the  bench  in  this  respect,  the  verdict 
will  not  be  permitted  to  stand.^ 

1  Although,  as  has  been  seen,  the  hxw  in  occasional  instances,  as  in  some  actions  of  tort,  fails 
to  presenile  a  precise  measure  of  the  damages,  but  contincs  itself  to  principles,  it  always  deter- 
mines whether  and  how  far  the  extent  of  the  compensation  is  to  be  left  to  the  jury's  discre- 
tion. 


CONCLUSION. 


We  have  in  the  preceding  pages  taken  a  survey  of  the  sub- 
ject of  compensation  as  awarded  by  the  legal  tribunals  known 
to  English  and  American  jurisprudence.  But  much  of  the  great 
demesne  of  justice  still  remains  unexplored.  The  courts  of 
admiralty,  of  narrow  jurisdiction  but  broad  and  liberal  doctrines, 
and  the  courts  of  equity,  with  their  vigorous  and  comjDlete 
specific  performance,  have  not  been  even  touched  in  these 
pages,    ' 


*i 


*  It  AYOuld  seem  that  we  do  not  owe  our  doc- 
trine of  specitic  performance  to  the  Roman 
Law.  "  According  to  the  principle,  aliud  pro 
alio  invito  crcditori  solvi  non  potest,  the  plain- 
titf  by  the  civil  law  may,  as  a  general  rule,  bring 
his  suit  for  the  specific  performance  which  con- 
stitutes the  object  of  a  debt,  and  the  court  is 
to  give  its  judgment,  and  to  issue  execution 
accordingly.  Still,  there  being  no  other  means 
of  execution  recognized  by  the  later  civil  law 
than  such  as  are  directed  against  the  debtor's 
property,  a  specific  performance  cannot  be  com- 
pelled except  in  the  case  of  things  due  in  specie, 
which,  if  requisite,  are  taken  from  the  debtor 
forcibly  (ma7iu  militari) ;  while  in  all  other 
cases,  if  the  debtor  refuses  to  obey,  the  execu- 
tion can  only  be  directed  against  his  property. 
The  latter  is  done,  either  by  sale  at  auction  of 
personal  or  real  estate  (even  rights  or  claims) 
belonging  to  the  debtor,  for  the  purpose  of 
satisfying  the  creditor  by  paying  him  off;  or 
by  ejecting  the  defendant  and  putting  the 
creditor  into  possession  (exmissio  et  immissio), 
so  as  to  enable  the  creditor  to  pay  himself  by 
means  of  the  possession  and  enjoyment  of  real 
estate,  or  so  as  to  secure  him  through  the 
debtor's  claims  or  rights.  See  Gains,  iii.  168, 
fr.  176,  D.  50,  16  ;  fr.  13,  §  4,  D.  36,  1 ;  fr.  17,  § 
2  ;  fr.  44,  D.  40,4;  fr.  36, 1).  40,12  ;  fr.  68,  D.  6, 
1  ;  fr.  1 5,  D.  42, 1 ;  fr.  3,  D.  43, 4  ;  const.  2,  7,  C. 

7,  fr.  53 ;  fr.  5,  §  6,  D.  7,  6 ;  fr.  12,  D.  8,  5  ;  fr. 
4,  §  1,  D.  39,  2  ;  fr.  15,  D.  39,  1 ;  const,  un,  C. 

8,  6.  Hence,  if  the  specific  object  be  lost  or  de- 
teriorated, or  if,  for  some  reason  or  other,  it 
cannot  be  produced  by  the  debtor,  its  value 
(cestimatio)  is  exacted ;  and  the  same  is  the 
case  where  the  debtor  is  prevented  from  per- 
forming any  act  purely  personal,  or  where  its 
performance  would  be  no  longer  of  any  use  to 
the  creditor,  or  where  it  is  refused  by  the 


debtor  altogether,  or  at  the  due  period  and  in 
the  due  manner.  For  the  Romans  very  justly 
regarded  compulsion  in  such  cases  as  inconsis- 
tent with  personal  freedom,  and  could  not  re- 
solve to  restrict  the  latter,  when  the  creditor  is 
amply  protected  by  his  right  to  full  compen- 
sation for  the  non-fulfillment  (Si  non  facit  de- 
bitor quod  promisit,  in  pecuniam  numeratam 
condemnatur,  sicut  evenit  in  omnibus  faciendi 
obligationibus),  and  thus  they  adopted  the  prin- 
ciple, ad  faciendum  nemo  precise  cogi  potest. 
And  it  would  seem  to  be  always  safest  and  best 
to  take  the  side  of  freedom  and  of  the  debtor, 
wherever  there  be  a  doubt.  With  regard  to 
such  acts,  however,  as  may  be  performed  by 
another  person  as  well  as  by  the  defendant 
himself,  compulsion  is  applied,  either  by  forci- 
ble fulfillment  in  his  name  and  place  (e.  g.  de- 
livery of  the  thing  adjudged  and  transfer  of 
title),  or  by  having  some  other  person  perform 
the  act  at  the  debtor's  expense,  Fr.  14,  68, 
72  ;  fr.  82,  §  1  ;  fr.  84  ;  fr.  91,  §  3  ;  fr.  113, 114, 
D.  45,  1  ;  fr.  3,  D.  13,  3  ;  §  4,  J.  2,  20  ;  fr.  71, 
§  3,  D.  30 ;  fr.  1,  pr.  D.  19,  1  ;  fr.  13,  §  1 ;  fr. 
15,  §  10,  D.  42,  1  ;  const.  4,  C.  4,  49. 

"  These  principles  are  retained  in  the  canon 
law,  cap.  2,  x.  3,  21  (Homo  liber  pro  debito  non 
tenetur  (i.e.  non  pignoratur),  etsi  res  defuerint 
quae  possint  pro  debito  addici) ;  and  so,  too, 
with  only  a  few  modifications,  in  the  French 
law.  C.  Civ.  art.  1142-45,  art.  1146,  se</.;  C. 
Proc.  act.  552,  780-805 ;  C.  Com.  art.  636-38. 

"  According  to  the  German  law,  on  the 
other  hand,  the  debtor  may  not  only  be  com- 
pelled in  case  of  a  negative  act  (an  omission 
promised  or  otherwise  due),  by  means  of  fines 
gradually  increased,  but  the  German  prac- 
tice ai)i)lies  a  direct  or  absolute  compulsion  by 
means  of  personal  arrest,  civil  imprisonment, 
military  watch  placed  in  his  dwellmg,  by  tak- 


1  See,  however,  ante,  8,  note  1,  and  541,  note  1,  where  certain  rules  of  damages  obser\-ed 
in  these  two  jurisdictions  are  respectively  noticed. 


714  CONCLUSION. 

[606]  Necessary  Incompleteness  of  Legal  Relief.  —  We  have 
here  only  examined  the  subject  of  redress  as  awarded  by 
the  courts  of  law,  or,  as  it  may  strictly  be  termed,  legal  relief; 
and  \h^  general  result  of  our  inquiry  will  be,  I  think,  that  the 
compensation  obtained  by  the  process  of  litigation  is  partial  and 
irregular.  Its  partial  or  incomplete  character  arises  from  the 
imperfect  nature  of  all  human  administration,  and  the  impossi- 
bility to  do  more  than  approach  correct  results.  Tribunals  able 
to  carry  their  inquiry  beyond  the  reach  of  our  investigation,  to 
scan  the  motive  of  each  act,  to  determine  how  much  is  due  to 
malice,  how  much  to  neglect,  and  how  much  to  honest  incapa- 
city, would  be  alone  fit  to  make  complete  compensation  in  each 
particular  instance.  As  our  jurisprudence  is  administered,  we 
must  content  ourselves  with  dividing  the  loss  between  the  con- 
tending parties.^ 

Embarrassment  from  Forms  of  Action. — The  irregularity  of 
legal  relief  is  a  very  different  matter.  This  arises  mainly,  as  it 
appears  to  me,  from  the  technical  character  of  our  forms  of 
action;  and  would  be  removed  by  their  removal.  When  there 
shall  cease  to  be  two  actions  against  an  agent,  one  on  the  case 
and  the  other  on  the  contract ;  when  it  shall  no  longer  be  pos- 
sible to  bring  trover,  trespass,  or  assumpsit,  upon  the  same 
[607]  facts;  when  the  suit  for  mesne  profits  shall  cease  to  be 
based  on  the  fiction  of  a  forcible  entry ;  when  the  action 
for  seduction  shall  no  longer  be  grounded  on  a  pretense  of  ser- 
vice,— when  anomalies  of  this  kind  shall  have  disappeared, 
then,  and  not  till  then,  will  it  be  easy  to  reduce  the  subject  of 
relief  to  order,  system,  and  harmony. 

I  am  happy  to  find  these  views  sustained  by  the  opinion  of  a 
very  accomphshed  judge,  delivered  in  New  York  since  the  aboli- 
tion of  the  English  system  of  pleading  in  that  State :  "  The 
arbitrary  distinctions  which  were  permitted  to  flow  from  a  dif- 
ference in  the  forms  of  action  are  abolished,  and  the  time  has 
arrived  when  general  and  uniform  rules  upon  the  sii^3Ject  of 
damages,  rules  so  just  and  comprehensive  as  to  be  susceptible 
of  universal  application,  may  be  adopted."  *^ 

ing  him  to  a  work-house,  and  even  by  whip-  application  of  absolute  compulsion  to  enforce 

ping  ;  also  in  all  those  cases  where  the  specific  any  obligation,  whether  it  have  for  its  object  a 

performance  of  any  obligation  whatever  is  re-  doing  or  giving,  could  be  justified  bv  the  later 

fused  by  the  debtor,  and  cannot  be  made  at  his  Roman  law."     I  am  indebted  for  this  note  to 

expense  by   another    person ;    or  where    the  the  learning   and   courtesy  of  Dr.  Kauffinan. 

debtor  fails   to   perform  merely  from  lack  of  "  As  to  where  compensation  and  damages  are 

good-will.     Yet,   from   what    has    been    said  decreed  in  equity,  see  2  Story's  Equity  Juris- 

above,  it  will  be  evident  that  it  is  altogether  prudence,  ch.  xix.  §  794. 

without  any  foundation  that  some  older  and  *  Suydara   v.   Jenkins,  3    Sandf   646,   per 

later  jurists  have  made  the  assertion,  -that  the  Duer,  J. 


1  But  see  ante,  38,  note  1.  3  ggg  a„^g^  41^  ^^^^  -^ 


CONCLUSION.  715 

Other  Irregularities. —  There  are,  however,  other  irregulari- 
ties entirely  independent  of  the  forms  of  action.  Such  are 
those  connected  with  the  questions,  whether  actual  injury  must 
in  all  cases  be  proved,  or  whether  a  suit  at  law  may  ])e  brought, 
qiiia  timet,  as  by  a  surety,  who  has  given  his  note  for  the  prin- 
cipal's debt;  the  discrepancy  between  suits  on  warranties  of 
chattels,  where  the  price  paid  is  only  evidence  of  the  value,  and 
on  sales  of  land,  where  the  consideration  money  is  the  absolute 
limit  of  recovery ;  the  contradiction  between  the  rule  in  trover, 
where  the  value  is  taken  at  the  time  of  the  conversion,  and  on 
sales  of  chattels,  where,  if  the  price  is  paid,  the  damages  are 
estimated  at  the  day  of  trial.^  These  difficulties,  and  others 
which  we  have  noticed  in  the  course  of  the  preceding  pages, 
can  only  be  removed  either  by  decisions  pronounced  after  a 
careful  survey  of  the  whole  subject,  and  with  a  view  to  a  com- 
plete classification  of  this  branch  of  the  law ;  or  by  legislative 
interference. 

Importance  of  Fixed  Rules.  —  The  importance  of  fixed  rules 
in  this  branch  of  jurisprudence  cannot  be  overrated.  Where 
the  law  and  the  facts  are  disposed  of  by  the  same  persons,  as 
under  the  civil  law,  no  particular  evil,  perhaps,  results  from  the 
exercise  of  an  arbitrary  authority  over  the  subject  of  compen- 
sation. But  where,  as  with  us,  the  cognizance  of  matters  of 
fact  is  separated  from  that  of  the  questions  of  law,  and  where 
the  arbiters  of  the  former  are  declared  incompetent  to  pass  upon 
the  latter,  —  to  give  them  an  uncontrolled  discretion  over 
the  amount  of  relief  would  lead  to  incalculable  mischief  [608] 
and  confusion.*  "  It  is  desirable,"  say  the  Supreme  Court 
of  Massachusetts,  "  to  have  as  definite  and  precise  rules  on  the 
subject  of  damages  as  are  practicable."!  "  A  proj^er  administra- 
tion of  justice, "  says  the  Supreme  Court  of  Louisiana, "  requires 
that  the  rules  established  by  law  for  the  assessment  of  damages 
should  be  adhered  to."  %  The  judicial  authority  to  settle  legal 
questions  would  be  utterly  nugatory,  if  the  amount  of  compen- 
sation were  a  mere  matter  of  arbitrary  discretion  wdth  the 
jury ;  and  hence,  the  settled  tendency  of  our  law,  as  well  as  of 
all  sound  reasoning  on  the  subject,  is  to  reduce  the  measure  of 
damages  as  far  as  possible  to  fixed  legal  rules,  excepting  only  in 

*  For  a  very  able  discussion  of  the  relative  t  Batchelder  v.  Sturgis,  3  Cush.  201. 

powers  and  duties  of  court  and  Jury  under  our  J  Arrowsmith  v.   Gordon,  3   La.  Ann,  R. 

system,  sec  Commonwealth  v.  Porter,  10  Met-  105. 
calf,  263,  and  many  cases  there  cited. 

1  See  ante,  311,  note  1,  and  554,  note  1. 


716 


CONCLUSION. 


those  cases  of  flagrant  outrage  where  the  law  steps  m  not  merely 
to  compensate  but  to  punish. 

And  here  I  cannot  better  close  this  volume  than  by  adopting 
the  words  used  by  old  Molinasus,  in  terminating  his  discussion 
of  the  same  subject :  Jam  tempus  est  manum  tollere  de  tabula, 
et  reliqua  qua)  plura  occurrunt,  suis  locis  reservando,  finem  huic 
syntagmati  imponere.* 

*  Dumoulin,  de  Eo  quod  Int.  §  219. 


FINAL  NOTE. 


ADDITIONS  AND  CORRECTIONS. 

Pape  27.  Damnum  Absque  Injuria  :  additional  note.  So  where  a  sheriff  collected  "  Con- 
federate" money  on  nji.fa.  and  deposited  it  in  a  safe,  where,  without  negligence  on  his  part,  it 
remained  until  it  became  valueless ;  held,  that  he  was  not  liable  fur  the  face  of  the  note' in 
United  States  currency.     Hudspeth  v.  Johnson,  34  Geo.  403. 

Page  152.  Nuisance.  The  following  case  has  lately  been  decided  in  New  York  :  — 
An  action  was  brought  1st,  to  recover  damages  for  injury  to  certain  buildings  of  the  i^laintifF 
caused  by  the  working  of  certain  steam  machinery  by  the  defendant  npon  premises  adjoining 
those  of  the  plaintiti',  and  the  effect  of  the  motion  and  noise  of  such  machinery  upon  the 
facility  of  letting  the  plaintiff's  buildings  and  the  amount  of  their  rents ;  and  2d,  fur  an  injunc- 
tion. On  the  trial  it  appeared  that  the  defendant's  premises  was  used  as  a  marble  factorv,  con- 
taining machinery  for  such  manufacture  propelled  by  steam,  and  also  that  the  plaintiff  had 
suffered  damages  from  this  fact.  Held,  that  the  action  lay.  The  court  say  :  "  This  presents 
the  naked  question  whether  the  lawful  character  of  the  results  of  an  occupation,  trade,  or 
mechanical  art,  or  the  care  with  which  it  is  carried  on,  can  prevent  any  right  of  action  by 
those  whose  enjoyment  of  life  or  property  is  disturbed  by  the  mode  or  means  of  conducting 
such  occupation,  "trade,  or  mechanical  art."  "  The  right  of  jarring  a  neighbor's  house  by  the 
motion  of  a  steam-engine  upon  one's  own  premises,  cannot  depend  at  all  upon  the  utility  or 
lawfulness  of  the  purpose  for  which  such  motion  is  employed,  or  of  its  final  results.  The 
intermediate  injury,  before  such  results  are  obtained,  wrought  upon  another's  property  or  en- 
joyment of  life,  makes  such  employment  unlawful." 

The  measure  of  damages  was  held  to  be  the  injury  to  the  building,  deprivation  of  rent,  and 
loss  of  tenants  to  the  commencement  of  the  action.  For  damages  for  injuries  caused  since  that 
time  a  new  suit  might  be  brought.    McKeon  v.  See,  4  Rob.  (Sup.  Ct.  N.  Y.)  449. 

Page  265,  note;  29th  line  from  bottom  of  page  :  after  "Am.  Law  Rev.  April,  1869,"  insert: 
"  See  also,  on  questions  connected  with  the  Legal  Tender  Acts,  Simpkins  v.  Low,  49  Barb.  382; 
Brack  v.  Peyser,  4  Rob.  (Sup.  Ct.  N.  Y.)  514 ;  Taylor  v.  Ketchum,  5  Ibid.  507." 

The  Nisi  Prius  case  of  Luling  v.  The  Atlantic  Insurance  Company  (45  Barb.  510),  cited  at 
page  262,  was  reversed  by  the  Supreme  Court  of  New  York,  in  the  first  district  (in  banc). 
February  24,  1868. 

The  validity  of  the  specific  money  act  of  California  (see  page  263)  is  also  under  review  by 
the  Supreme  Court  of  the  United  States.    McGlynn,  Ex'r,  v.  McGraw,  Adm'r. 

Page  402,  note  ;  25th  line  from  bottom  of  note  :  after  "  12  Allen  531,"  insert  "  The  latest 
Massachusetts  authority  on  the  subject  of  carriers'  delay  in  the  transportation  of  goods.  Cutting 
V.  Grand  Trunk  Railroad  Co.  13  Allen,  381.  In  that  case  it  was  held  that  if  a  common  car- 
rier unreasonably  delays  to  transport  and  deliver  goods  intrusted  to  him  for  carriage,  and  their 
market  value  falls  meanwhile,  the  measure  of  damages  in  an  action  against  him  is  the  differ- 
ence between  their  market  value  at  the  time  when  and  the  place  where  they  ought  to  have  been 
delivered,  and  their  market  value  at  that  place  on  the  day  when  they  are  delivered,  although 
there  is  no  contract  to  deliver  them  within  any  certain  time,  and  the  goods  are  not  intended  to 
be  used  for  any  special  purpose  at  any  certain  time,  and  the  carrier  finally  dehvers  them  in  the 
same  condition  as  when  they  were  received  by  him." 

The  case  of  Trevor  v.  Wood,  41  Barb.  255,  cited  on  the  subject  of  telegraphs  at  page  414, 
in  the  note,  has  been  reversed  by  the  Court  of  Appeals  of  New  York,  in  a  decision  published  in 
February,  1868  (7  Am.  Law  Reg.  (N.  S.)  215),  in  which  the  views  of  the  court  accord  with 
those  expressed  in  the  note,  as  to  the  completion  of  a  contract  by  telcgrajih. 

Ch.  xvi.  p.  447.  The  following  cases  may  also  be  referred  to  on  the  subject  of  liquidated 
damages.     C  sold  to  D  certain  horses,  wagons,  and  harness,  and  the  good-will  of  an  express 


718  FINAL   NOTE. 

business  in  the  town  of  \V.  for  S650  and  a  grant  in  writing  not  to  do  any  express  business  nor 
cause  any  to  be  done  in  that  town,  so  long  as  1).  or  his  heirs  should  do  such  business  there ; 
'the  agreement  contained  the  further  stipulation:  "In  violation  of  the  above,  I,  Michael  L. 
Gushing,  do  agree  to  i)ay  John  B.  Drew  or  his  heirs,  the  sup  of  nine  hundred  dollars."  Held, 
that  this  sum  was  stipulated  as  liquidated  damages.     Cushing  v.  Drew,  97  Mass.  445. 

The  defendant  agreed  with  plaintiffs /lot  to  pay  for  ore  taken  from  plaintiffs'  land,  a  greater 
price  than  they  were  paying  for  such  ore,  and  that  he  would  not  pay  a  greater  price  for  ore 
taken  from  other  lands  than  they  were  paying  for  ore  taken  from  their  own,  and  to  sell  all  ore 
purchased  by  him  to  plaintiffs,  for  which  he  was  to  receive  four  dollars  per  thousand  pounds 
more  than  plaintiffs  were  then  paying  to  the  miners  on  their  own  laud ;  and  bound  himself 
in  a  certain  sum  as  "  liquidated  damages,"  to  be  paid  in  case  of  a  violation  of  or  failure  to 
perform  any  of  such  stipulations.  Such  a  sum  was  held  to  be  a  penalty.  The  court  say : 
"  In  the  case  of  Basye  v.  Ambrose  28  Mo.  39,  the  court  says  that  where  the  agreement  secured 
the  performance  or  omission  of  various  acts  which  were  not  measurable  by  any  exact  pecuniary 
standard,  together  with  one  or  more  acts  in  respect  to  which  the  damages  on  a  breach  of  con- 
tract are  readily  ascertainable  by  a  jury,  and  there  is  a  suni  stipulated  as  damages  for  a  breach 
of  any  one  of  the  covenants,  such  sum  is  held  to  be  a  penalty  merely.  The  authority  is 
clearly  in  point  in  the  question  we  are  now  considering.  The  sum  sued  for  is  to  be  treated  as 
a  penalty,  and  not  liquidated  damages."     Long  v.  Towl,  42  Mo.  545. 

Morse  sold  to  Rathburn,  by  an  agreement  in  writing,  liis  farm  for  $21,000.  By  the  terms  of  the 
agreement  $9,000  was  to  be  paid  in  cash  at  a  certain  time  and  place,  and  for  the  remainder 
Rathburn  was  to  give  two  notes  for  $6,000  each,  payable  in  one  and  two  years  respectively,  with 
interest  at  6  per  cent.  The  payment  of  the  notes  was  to  be  secured  by  deed  of  trust  on  the 
land.  On  the  payment  of  tlie  money,  and  the  execution  and  delivery  of  the  notes  and  deed  of 
trust,  Morse  was  to  give  a  good  warranty  deed  of  the  estate.  The  agreement  further  stipulated  : 
"  And  the  said  parties  to  this  agreement  bind  themselves  that  either  party  failing  to  comply 
with  its  provisions  shall  forfeit  and  pay  to  the  other  the  sum  of  two  thousand  dollars.  Morse,  at 
the  appointed  time,  presented  his  deed,  and  tendered  a  compliance  with  his  part  of  the  con- 
tract, but  Rathburn  refused  to  comply  or  execute  it  on  his  part ;  held,  that  the  stipulation  should 
be  treated  as  one  for  liquidated  damages,  and  not  one  for  a  penalty.  Morse  v.  Rathburn,  42 
Mo.  594. 

Ch.  xvi.  p.  447.  Injunction  Bonds.  The  following  case  may  also  be  referred  to.  The 
injunction  prayed  by  the  bill  was  to  prevent  the  defendants  from  selling,  disposing  of,  or 
Intermeddling  with  certain  goods,  and  to  obtain  a  decree  applying  the  same  to  the  payment  of 
the  debt  of  the  complainants  and  others  ;  held,  that  the  amount  properly  recoverable  in  an  action 
on  the  bond,  is  the  loss  in  value  of  the  goods  during  the  operation  of  the  injunction,  not 
exceeding  the  penalty  of  the  bond  with  interest  thereon  from  the  time  of  the  institution  of  the  suit. 
Levy  V.  Taylor,  24  Md.  282. 

Page  533,  note  ;  16th  line  from  bottom  of  page  :  after  "  36  Missouri,  351,"  insert  "And  in 
M'Keon  v.  Citizens'  R.  R.  Co.  42  Mo.  80,  it  was  said  that  exem[)lary  or  punitory  damages  are 
only  given  in  cases  of  willful  wrong ;  while  Holmes,  J.,  went  so  far  as  to  say,  "  It  is,  at  least, 
very  questionable,  upon  principle  and  authority,  whether  damages  for  punishment  can  be  given 
in  any  civil  action.     My  own  opinion  is  that  they  cannot." 

Page  533.  See  also,  on  the  subject  of  exemplary  damages,  Moore  v.  Bowman,  47  N.  H. 
494-507. 

Page  569,  note ;  3d  line  beginning :  after  "  note,"  insert  "  in  Lucas  v.  Trumbull,  15  Gray,  306, 
the  rule  of  damages  for  the  conversion  of  a  horse  and  carriage,  which  had  been  subsequently 
returned  to  the  owner  and  received  by  him,  was  held  to  be  their  value  at  the  time  of  conversion, 
less  their  value  at  the  time  of  return." 

Page  627.  Evidence  in  Mitigation  or  Aggravation.  Evidence  of  the  moral  and 
intellectual  character  of  a  person  in  whose  hearing  slanderous  words  are  spoken,  is  immaterial 
upon  the  question  of  damages  in  an  action  for  slander.  Evidence  that  the  plaintiff'  on  the  even- 
ing before  the  slanderous  words  were  uttered,  addressed  provoking  and  violent  words  to  the 
defendant,  is  not  admissible  in  mitigation  of  damages.     SheffiU  v.  Van  Deusen,  15  Gray,  485. 

Page  658.  Fraud  in  Sale.  In  an  action  against  the  seller  of  a  promissory  note  which  has 
been  paid,  for  knowingly  misrepresenting  at  the  time  of  the  sale  that  it  was  still  due  and  unpaid, 
the  measure  of  damages  is  the  full  amount  of  the  note.     Sibley  v.  Hulbert,  15  Gray,  509. 

Page  660,  note  1.     See  also,  Adams  v.  Blodgett,  47  N.  H.  219. 

Ch.  xxiv.  p.  676.    See  also,  Garvin  v.  Paul,  47  N.  H.  158. 


INDEX. 


INDEX. 


ACCEPTOR  of  bills,  not  liable  for  re-exchange,  271. 
ACCOMMODATION  PAPER,  parties  to,  their  rights  to  recover,  266. 

as  to  costs,  276,  363,  364. 
ACCORD  AND  SATISFACTION  by  parol,  when  bar  to  damages,  684. 
ACCOUNT,  action  of,  255. 

ACTION,  form  of,  for  conversion,  568,  573,  note  2. 
amicable,  no  vindictive  damages  in,  525. 
unauthorized,  644. 
vexatious,  107,  643. 
forms  of,  37,  137,  254,  568. 

forms  of,  difficulties  arising  from,  in  making  scientific  division  of  sub- 
ject, 3. 
authorities  in  favor  of  maintaining,  37. 
forms  of,  general  tendency  to  abolition  of,  39. 
forms  of,  confusion  from,  137. 

circuity  of,  to  be  avoided,  499,  et  seq.,  562,  note,  585,  note  4. 
personal,  48. 

with  other  than  a  pecuniary  standard,  312. 
as  to  personal  property,  216,  et  seq. 
successive,  for  mill  injuries,  148. 

continuous  wrong,  649,  note. 
nuisances,  155. 
for  use  and  occupation,  501. 
division  of,  in  tort,  515. 
ACT  OF  GOD  excuses  non-performance  of  contract,  235,  note  2. 
ACTS,  compulsoi'y,  not  relieved  against,  27. 
ACTUAL  DAMAGES  in  patent  suits,  674,  note  1. 

ACTUAL  LOSS  must  be  sustained  to  create  a  claim  for  damages,  27,  217,  252. 
is  the  measure  in  tort  where  no  aggravation,  516,  586,  602. 
is  the  measure  of  damages  in  contract,  217,  229,  345,  351. 
as  between  principal  and  surety,  346. 
must  exist  as  between  principal  and  agent,  374. 
only  recoverable  under  penalty  of  bond,  452. 
ACTUS  LEGIS  nemini  est  damnosus,  120. 
AD  DAMNUM  in  declaration  limits  recovery,  681. 
ADDITIONS,  note  of,  7. 
46 


722  INDEX. 

AD  Q  UOD  DAMNUM,  writ  of,  667,  note. 
ADVANCE,  payment  in,  292,  et  seq. 

in  purchase  of  real  estate,  202. 
ADVERTISEMENT,  damages  for  neglect  to  insert,  89,  note  1 . 
ADVOAVSON.  damages  as  to,  128. 
^THELBERTI  LEGES,  12.  . 
AGENT  AND  PRINCIPAL.     (See  Principal),  372. 

liability  of,  to  principal,  fixed  by  law,  373. 
AGENT'S  neglect  or  default,  372,  et  seq. 

liability  for  indirect  damage,  374,  375. 
interest  381,  386,  note  1. 
sales  below  limit,  386. 
sales  against  orders,  375. 
neglect  to  insure,  375. 

to  present  draft,  384. 
to  collect  debt,  386. 
AGGRAVATION,  evidence  in.     (See  Evidence),  528,  627,  659. 

evidence  in,  as  to  pleading,  627,  et  seq. 

in  trespass,  145,  658. 
AGREEMENTS,  continuing,  114,  119,  246,  et  seq. 

between  landlord  and  tenant,  208. 

for  transfer  of  stock,  292,  et  seq. 

to  pay  in  specific  ai'ticles,  267. 

not  to  marry,  462. 

to  act  on  the  stage,  468. 

not  to  practice  business,  467,  et  seq. 

unconscionable,  231. 

to  do  various  acts,  248. 

to  furnish  freight,  404. 

with  several  stipulations,  464,  et  seq. 

liquidating  damages,  454,  et  seq. 
ALFRED,  Laws  of,  15. 
AMERCIAMENTS,  j9ro/a?so  clamore,  104. 
ANGLO-SAXONS,  their  measure  of  damages,  11. 
ANII\L\LS,  warranty  of,  329,  note. 

injuries  by,  670. 

false  representations  in  sales  of,  333. 
ANNUITY  TABLES,  life  lost  by  negligence  not  valued  by,  646,  note  2. 
APPRENTICE,  damages  for  enticing,  111. 
AQUEDUCT,  profits  on  construction  of,  77. 

ARBITRARY  valuation  of  damages  to  be  avoided,  if  possible,  15,  715. 
in  insurance,  281,  et  seq. 

assessment  of  damages  according  to  modern  civil  law,  23. 

discretion  of  the  jury  in  the  early  cases,  1,  20,  217,  704. 

inherent  difficulties  sought  to  be  avoided  by,  25. 


INDEX.  723 

ARBITRATOR,  estimate  of,  in  case  of  contracts,  its  binding  effect,  246. 

no  power  to  award  beyond  verdict,  where  taken  by  consent,  689. 

not  so,  however,  in  debt,  689. 
ARGOU,  cited,  62. 
ASSAULT  on  child  or  servant,  651. 

and  battery,  112,  637,  638,  note  2. 
mitigation  in,  636. 
provocation  in,  638. 
ASSESSMENT  of  several  damages,  685. 
ASSESSMENTS,  and  taxes,  covenant  to  pay,  215. 
ASSIGNEES  of  bankrupts,  damages  in  suits  by,  420. 
ASSIGNMENT  of  judgments,  damages  upon,  425. 

of  policy  of  life  insurance,  427,  note  1. 

of  breaches,  450. 
ASSUMPSIT,  action  of,  its  recent  origin,  255,  and  note. 

may  be  brought  sometimes  where  trover  will  lie,  38,  note. 
ATTACHMENT  BONDS,  453, 7iote  1. 
ATTACHMENTS  wrongfully  issued,  damages  upon,  459,  note,  588,  note,  621, 

note  1,  643. 
ATTORNEY,  action  against,  113,  588,  note. 

fees  of,  in  cases  against  carriers,  395,  note  1. 
AUCTIONS,  392,  note  2. 

sale  to  determine  value,  397,  note  2. 
AULA  REGIS,  Exchequer  formerly  a  part  of,  19. 
AUTHORITY,  want  of,  331,  note  2,  392,  note  1. 

suits  brought  without,  644,  and  note  1. 
AVERAGE,  general.     (See  Insurance),  280,  282. 
AVERMENT  of  damage  676,  et  seq. 

of  special  damage,  677,  and  note  1. 

BAILMENT,  424, 7iote  2. 

BANKERS,  377. 

BANKRUPT'S  ASSIGNEES,  suits  by,  420. 

BAR  TO  DAMAGES  by  parol  accord  and  satisfaction,  684. 

BARTER  CONTRACTS,  206,  note  1,  220. 

BARBOUR,  on  Set-off,  referred  to,  4. 

BATTLE,  trial  by,  16. 

BENECKE,  referred  to,  4. 

BILLS  of  exchange,  damages  on,  265,  note  1,  270. 

acceptor  of  not  liable  for  re-exchange,  271. 

of  lading,  rule  of  damages  as  to,  394,  note  2. 
BONA  FIDE  POSSESSOR,  his  equities,  132,  135. 
BOND,  341,  et  seq. 

debt  on,  447,  et  seq.,  484. 

ne  exeat,  477. 


724  INDEX. 

BOND,  —  Continued. 

to  resign  living,  477. 

against  poaching,  459. 

given  by  sheriff,  &c.,  suits  on,  610,  and  note  1. 

given  to  sheriff,  &c.,  suits  on,  341,  note  1. 

with  several  conditions,  464,  et  seq. 

between  partners,  462. 

to  be  reasonably  construed,  452,  note  1. 

statutory,  453,  note  1,  et  seq. 

giving  of,  not  payment,  353. 
1  given  by  agent  to  secure  principal,  460. 

poor  debtor's,  damages  on,  610,  note  2. 
BREACPI  OF  PROMISE,  228,  421,  et  seq. 

no  fixed  rule  of  damages  in,  228. 

justification  in,  422,  and  note  3. 
BREACHES,  assignment  of,  450. 
BROKERS.     (See  Principal  and  Agent),  372,  et  seq. 

insurance,  375,  379,  et  seq. 

in  stocks,  388,  7iote  1. 

right  of,  to  commissions,  390,  note  1. 
BURDEN  OF  PROOF  in  actions  against  sheriffs,  595,  et  seq. 

CAIRNS,  Sir  HUGH'S,  act,  8,  9,  note,  675,  note. 

agreements  not  capable  of  specific  performance,  not  within,  9. 
CALIFORNIA,  rule  as  to  fraud  in  actions  of  contract  in,  226. 
CARGO,  rule  of  damages  on  non-delivery  of,  397. 

refusal  of,  406. 
CARRIER,  common.     (See  Common  Carrier),  394,  et  seq. 
CASE  and  trespass,  distinction  between,  66,  585. 

damages  in  action  on  the,  585,  et  seq. 

action  on  the,  against  sheriffs,  586. 

against  sheriffs,  burden  of  proof,  on  whom  it  rests,  590,  et  seq. 

for  seduction,  631. 

for  false  imprisonment,  649. 

or  trespass  for  injuries  to  personal  property,  612,  et  seq. 
to  the  person,  631. 
CATTLE,  distraint  of,  156. 

used  as  measure  of  value,  14. 

diseased,  damages  for  infection  by,  58,  98,  333,  note  1. 
CAUSE  OF  ACTION,  when  entire,  247,  et  seq. 
CERTAINTY,  requisite  as  to  future  damages,  117. 

CHARITABLE  REMUNERATION,  no  allowance  for,  in  actions  of  tort,  35. 
CHARTER-PARTIES,  damages  on,  398,  426,  and  note  1. 
CHOSES  IN  ACTION,  when  sued  for  in  trover,  563. 
CIVIL  LAW,  23,  57,  et  seq.,  88,  123,  163,  et  seq.,  258,  561. 

interest  under,  258. 


INDEX.  725 

COALS,  trespass  for  removing,  022,  et  seq. 

CODE  NAPOLEON,  as  to  damages,  23,  59,  165,  48L 

damages  under  the  system  in  France  previous  to,  23. 

profits  allowed  by,  59. 
CODE  of  Louisiana,  its  provisions  in  regard  to  damages,  22G,  note. 

of  procedure  in  New  York,  39. 

civil,  of  New  York,  provision  as  to  exemplary  damages,  532,  note. 
CODES  OF  PROCEDURE,  what  States  adopted  by,  37,  note  1. 
COIN  of  United  States,  2G1,  note  2. 

foreign  value  of,  in  this  country,  265,  note. 
COLLECTORS  of  customs,  suits  against,  608. 
COLLISION,  damages  in  cases  of,  536,  note  2. 
COMMENCEMENT  OF  SUIT,  whether  damages  allowed  after,  110,  119. 

in  trespass,  112. 

case  of  negligence,  113. 

how  defense  arising  after,  to  be  set  up,  122. 

usually  limits  rights  of  parties,  119. 
COMMISSIONS,  brokers',  actions  for,  394,  note  1. 
COMMON  CARRIERS,  rule  of  damages  as  to,  390,  et  seq. 

how  affected  by  form  of  ac- 
tion, 394,  and  note  1. 

when  damages  arising  from  their  negligence  can  be  recouped,  512. 

rule  of  damages  against  them  is  determined  by  the  value  of  goods  at 
place  of  destination,  395. 

how  value  of  goods  carried  by,  arrived  at,  396,  397,  note,  401. 

consequential  damages  against,  73,  395,  note  2,  400,  note  3,  et  seq. 

agreement  to  furnish  freight  to,  404. 

rule  in  Hadley  v.  Baxendale  applied  to,  79,  note  1. 

owners  of  goods  not  carried  by,  bound  to  obtain  other  freight  if  practi- 
cable, 396. 

whether  telegraph  companies  are,  407,  note  3,  et  seq. 

in  cases  of  fraud,  398,  and  note. 

in  what  sense  insurers,  407,  note. 

damages  against,  from  delay,  400,  note  2,  et  seq. 

claim  for  profits  against,  81,  note. 

deterioration  of  goods  carried  by,  397,  note  2,  401,  note. 
of  live  stock  carried  by,  402,  note. 

liability  of,  beyond  route,  396,  note  3. 

loss  in  market  value,  from  default  of,  397,  note  2. 

mitigation  in  actions  against,  404. 

acceptance  of  goods  from,  goes  in  mitigation,  404. 

of  passengers,  407,  note  2. 

whether  telegraph  companies  are,  408,  et  seq. 
COMMON  LAW,  provides  a  remedy  for  every  injury,  25. 

how  differs  from  equity  as  to  damages,  9. 
civil  law,  59. 


726  INDEX. 

COMPENSATION  is  the  principle  of  the  Anglo-American  jurisprudence  as 
to  damages,  25,  34,  note,  35,  note  1,  125,  note  1,  531,  note,  615,  633, 
648. 

analysis  of,  31. 

juridical  interpretation  a  very  restricted  one,  31. 

legal  accei^tation  of,  33,  35. 

how  far  term  incorrectly  applied,  33,  note  2,  35. 
,  for  loss  of  time,  93. 

amount  of,  is  a  question  of  law,  26,  218,  et  seq.,  516,  540,  585,  712. 

principle  of,  adhered  to  even  in  tort,  where  no  aggravation,  516. 

to  be  made  for  actual  loss  only,  27,  217,  229,  252,  615. 

where  private  property  is  taken  for  public  use,  662,  et  seq. 

and  punishment  cover  the  field  of  damages,  125,  note  1,  660,  note  1. 

limits  of,  32,  34. 

limits  of,  in  suits  against  agents,  379,  et  seq. 

for  actual  loss  the  rule  in  contracts,  229,   et  seq.,  252,  345,  380. 

where  no  aggravation,  rule  in  trespass,  648. 

to  be  kept  distinct  from  punishment  of  defendant,  531,  note. 

time  and  mode  of,  for  taking  property  for  public  use,  667. 

generally  to  precede  or  be  concurrent  with  taking,  667,  note  1. 

rule  as  to,  for  taking  property,  in  New  York,  667. 

in  various  States,  667,  et  seq. 
COMPOSITION  of  offenses,  30. 
COMPOUND  INTEREST,  489. 

COMPROMISE  of  public  offenses  illegal  unless  an  action  will  lie,  30. 
COMPULSORY  ACTS,  not  relieved  against,  27. 
COMPURGATORS,  trial  by,  17. 

CONCURRING  NEGLIGENCE  of  both  parties,  101,  et  seq.,  153,  534,  and 
note  1. 

as  to  infants,  538. 

modifications  of  rule  as  to,  539. 

must  contribute  to  injury  to  defeat  recovery,  536. 

in  collisions,  536,  note. 

does  not  excuse  malicious  injuries,  539. 
CONFUSION,  what  it  is,  559. 

of  goods,  remedy  for  in  trover,  559. 
in  trespass,  560. 

rule  of  the  common  law  in  cases  of,  559. 
civil  law  in  cases  of,  561. 
CONSEQUENCES  OF  ILLEGAL  ACT,  when  damages  given  for,  112. 

which  might  have  been  prevented,  101,  102,  229,  note  1. 
CONSEQUENTIAL  DAMAGES,  56,  et  seq. 

Pothier  cited  as  to,  57.  , 

according  to  the  French  Code,  59. 

according  to  Toullier,  61. 


INDEX.  727 

CONSEQUENTIAL   DAMAGES,  —  Continued. 

according  to  Lord  Kaiins,  G3. 

general  principles  as  to,  63. 

averment  of,  in  the  declaration,  G7,  G82. 

as  to  profits  lost,  08,  70,  note  1,  401,  et  seq.,  note,  536,  note  2. 

as  to  principal  and  surety,  80,  362,  371. 

in  collision  cases,  536,  note  1. 

in  actions  against  sheriffs,  008,  and  ?ioie  1. 

against  telegraph  companies,  413,  414. 

as  punishment,  531,  note. 

as  to  sales,  84. 

as  to  marine  insurance,  278, 7iote  2. 

as  to  warranties,  84. 

in  cases  of  tort  without  aggravation,  86. 
of  tort  with  aggravation,  86,  87. 
of  assault,  89. 
for  seduction,  89. 
malicious  prosecution,  89. 
slander,  90. 
of  fraud,  91,  93,  98,  652,  et  seq. 

in  trespass  to  person,  90,  note  1,  91,  112. 

in  actions  on  statutes,  92. 

where  plaintiff  in  fault,  101,  et  seq. 

as  to  counsel  fees,  103,  et  seq. 

as  to  acts  after  suit  brought,  110. 

as  to  grantees  of  franchises,  120. 

on  warranties  of  chattels,  325. 
CONSIDERATION  MONEY,  fixes  the  damages  in  case  of  eviction,  160,  etseq. 

statement  of,  when  conclusive,  184. 

in  cases  of  bills  or  notes,  266. 

inadequate  in  contracts,  232. 
CONSPIRACY,  writ  of,  and  action  on  the  case  for,  654. 
CONSTITUTIONALITY,  question  of,  as  to  legal  tender  notes,  201, 7iote  2. 
CONSTITUTIONS,  State  provisions  of  as  to  taking  property,  665. 
CONSTRUCTIVE  TOTAL  LOSS,  282. 
CONTEMPT  OF  COURT,  damages  awarded  for,  515,  note  1. 
CONTRACT,  in  action  of,  future  damages  must  be  certain,  117. 
CONTRACTORS  on  public  works,  their  damages,  416. 
CONTRACTS  generally,  rule  of  damages  as  to,  216. 

former  vague  discretion  of  jury,  217. 

in,  motive  of  the  defendant  not  inquired  into,  221,  et  seq.,  224. 

when  consideration  of,  to  be  paid  in  land  or  services,  220. 

furnish  the  measure  of  damages,  217,  233,  251. 

to  be  paid  in  property  or  services,  220. 

entire,  251,  et  seq. 

when  entire,  damages  for  part  performance  of,  234,  et  seq.,  and  notes. 


728  INDEX. 

CONTRACTS,—  Continued. 

part  performance  of,  23 G,  et  seq.,  and  notes,  ibid. 

implied,  253,  254,  note  1. 

for  forbearance,  damages  on,  415. 

to  do  various  acts,  248. 

made  in  one  county  to  be  performed  in  another,  265,  note  1. 

rescission  and  affirmance  of,  311,  334. 

special,  415,  et  seq. 

for  the  purchase  of  lands,  damages  as  to,  195,  et  seq. 

not  defeated  by  mere  inadequacy  of  consideration,  232. 

for  lands  where  title  to  be  made  by  third  party,  201. 

how  far  fraud  in,  affects  the  damages,  199,  et  seq. 

as  against  vendor,  196. 

where  vendor  has  no  title,  197. 

rule  in  United  States  Supreme  Court,  199. 

value,  when  recoverable,  how  determined,  201. 

rule  where  land  has  declined  in  value,  202. 

as  against  vendee,  203,  et  seq. 

allowance  of  interest  in,  205. 

to  pay  for  labor  in  land  or  other  property,  206,  207,  220. 

measure  of  damages  in,  when  contract  is  within  statute  of  frauds,  207. 

nominal  damages  in,  50. 

by  parole  for  sale  of  land,  206,  notes  2,  3. 

for  sale  of  personal  property,  289,  et  seq. 

exemplary  damages  in,  223,  note  1. 

malicious  breach  of,  224,  note. 

building,  236,  note. 

deviation  from,  by  consent,  242. 

rule  in  England  and  New  York,  242. 

acceptance  of  incomplete  performance  of,  235,  note  2. 

waiver  of  performance  of,  236,  note,  240,  note  1,  244,  iiote  1. 

for  delivery  of  property  in  future,  251. 

continuing,  246,  et  seq. 

apportionable,  246. 

severable,  251. 

executory  and  executed,  distinction  as  to  sales,  294. 

executed,  rule  in  Flureau  v.  Thornhill  does  not  apply  to,  69,  note  1. 

liquidating  damages,  454,  et  seq. 

for  public  works,  416. 

to  transfer  land-certificates,  207. 

for  sale  of  stocks,  291,  et  seq. 

foreign,  262,  et  seq. 
CONVERSION.     (See  Trover),  541,  et  seq. 

time  of,  how  fixed,  549,  note  1,  et  seq. 
CONVEYANCES,  covenants  in,  166. 
CORRECTIONS,  note  of,  7. 


INDEX.  729 

COSTS.  174,  COO,  and  note  1. 

when  recoverable  by  parties  to  negotiable  paper,  276. 
when  recoverable  in  cases  of  warranty,  8i,note  1,  326. 
liability  of  principal  to  surety  for,  302,  et  seq. 
of  agent  to  principal  for,  380. 
of  principal  to  agent  for,  390,  note  1. 
of  prior  actions,  27G,  362. 
as  affected  by  nominal  damages,  54,  note. 
re-assurer's  liability  for,  3G8. 
between  co-sureties,  369. 
as  between  lessee  and  sub-lessee,  370. 
CO-SURETIES,  rule  as  to  damages  between,  369. 
COUNSEL  FEES,  in  patent  cases,  108,  673,  et  seq. 
not  now  allowed,  673,  note  1. 
as  damages,  103,  et  seq. 
on  statutory  bonds,  453,  note  1. 
for  setting  aside  injunction,  453,  note  1. 
not  allowed  in  cases  of  contract,  103,  et  seq. 
whether  in  cases  of  tort,  105,  et  seq.,  106,  note  2,  109,  110. 
not  allowed  when  no  aggravation,  109. 
in  cases  of  trespass,  109. 
in  admiralty,  108,  109,  note  1. 
in  Massachusetts,  105. 
in  action  for  malicious  prosecution,  107. 
COUNTER-CLAIM,  515,  519,  note  1. 
COUNTS,  effect  of  joinder  of  good  and  bad,  680,  685,  et  seq. 

bad  in  part,  687. 
COUNTY  CLERK,  action  against,  608,  note  2. 
COURT,  questions  of  law  are  for,  705. 

power  of,  over  question  of  damages,  652,  703,  et  seq. 
COURTS  OF  EQUITY,  8,  note  1. 

of  the  United  States,  damages  with  reference  to  their  jurisdiction,  682. 
COVENANT,  action  of,  255,  424. 
COVENANTS,  real,  damages  as  to,  161,  et  seq. 
to  some  extent  cumulative,  163. 
to  indemnify,  342,  et  seq. 
against  incumbrances,  189. 
for  quiet  enjoyment,  rule  as  to,  167,  et  seq. 
of  seisin,  186,  et  seq. 
in  leases,  175,  209,  371,  460. 
of  warranty,  167,  et  seq. 
where  title  fails  in  part,  182. 
to  make  partition,  207. 
to  repair,  210,  et  seq. 
to  maintain  ferry  in  good  order,  211. 
to  keep  half  a  mill-dam  in  repair,  213. 


730  INDEX. 

COVENANTS,  —  Continued. 

damages  in  actions  of,  424. 
not  to  marry,  4G2, 
personal,  in  deeds,  162,  et  seq. 
in  conveyances,  1G6,  et  seq.   ■ 
for  title,  186,  et  seq. 
to  pay  rent,  209. 
to  rebuild,  214. 
to  renew,  214, 7iote  2. 
in  Pennsylvania,  214. 
to  insure,  214. 

to  pay  taxes  and  assessments,  215. 
as  to  quantity  of  land  sold,  458. 
»        as  to  tillage,  461. 
not  to  cut  trees,  462. 
and  bonds,  distinction  between,  484. 
CREDIT,  sales  on,  316. 
CRIMINAL  CASES,  compromise  of,  30. 

conversation,  damages  in  action  for,  634,  637,  638,  note  1. 

wife's  value  the  measure  in  ;  against  co-respondent,  634, 

note  2. 
new  trials  have  never  been  awarded  in,  for  excessiveness 
of  damages,  709. 
CULPA,  different  degrees  of,  21,  88,  123. 
lata,  21,  88,  123. 
levis,  21,  124. 
CURRENCY,  depreciation  of,  261,  and  note  2,  et  seq. 
CUSTODY,  value  of  rule  of  damages  in  escape  suits,  594. 
what  is,  595,  and  notes, 

DAM,  153. 

DAJVIAGES,  derivation  of,  system  by  which  awarded,  11,  et  seq. 
defined  by  Blackstone,  25. 

original  vagueness  of  the  English  law  as  to  the  measure  of,  1. 
measure  of,  distinction  between  this  and  cause  of  action,  3. 
under  the  Anglo-Saxons,  11,  et  seq. 

the  Hindoo  law,  20. 

the  Jewish  law,  20. 

the  Roman  law,  2\,  et  seq. 

the  modern  civil  law,  23,  59,  et  seq. 

the  English  law,  25. 
measure  of,  is  matter  of  law,  25,  373,  394,  540,  585,  633. 
vindictive  or  exemplary,  34,  517,  et  seq.,  528,  et  seq. 
not  allowed  in  amicable  actions,  525. 
nominal.     (See  Nominal  Damages),  43,  et  seq. 


INDEX.  731 

DAMAGES,  —  Continued. 

nominal,  for  trespass  to  real  property,  142. 

remote.     (See  Consequential  Damages),  56,  et  seq.,  144. 

in  suit  between  lessor  and  lessee,  83. 
consequential.     (See  Consequential  Damages),  5G,  et  seq. 

in  marine  insurance,  278,  note  2,  et  seq, 
as  to  loss  of  profits.     (See  Profits),  68. 
prospective.     (See  Prospective  Damages),  110,  et  seq.,  252. 
in  real  actions,  126. 
in  ejectment,  128. 
in  trespass  for  mesne  profits,  132. 
in  patent  suits,  673. 
definite,  41. 
indefinite,  40. 

uncertain  in  agreements,  465. 
proximate,  64,  Q5. 

contemplated  by  the  parties,  65,  77. 
in  tort,  85,  et.  seq. 
special.     (See  Special  Damages),  676. 

against  carriers,  80,  note,  394,  et  seq.,  395,  note  2. 
for  neglect  to  insert  advertisement,  89,  note  1. 
in  slander,  90. 
in  false  imprisonment,  91. 
for  false  representations,  91. 
for  neglect  to  repair  fences,  95. 
removal  offences,  103. 
after  suit,  110,  et  seq.,  114. 
in  grading  street,  121. 
resulting,  67. 

on  what  principles  awarded,  125,  note  1. 
as  to  injuries  from  mills,  147,  et  seq. 
double,  156,  671. 
treble,  156,  671. 

in  patent  suits,  673,  note  1. 
on  bonds  to  sheriff,  341,  note  1. 

by  sheriff,  610,  and  note  1. 

statutory,  453,  note  1. 
for  detention  of  debt,  453. 
in  equity,  8,  note  1. 

awarded  generally  as  compensation.     (See  Cojipensation),  25. 
between  compensatory  and  punitive,  660,  note  1,  125,  note. 
for  highways,  663,  note. 
for  railways,  663,  note. 
for  public  improvements,  662,  note  2. 
entire  or  several,  685,  et  seq. 


732  INDEX. 

DAMAGES,  —  Continued. 

occurring  after  suit,  680. 
excessive,  707,  et  seq. 
small,  710,  and  notes,  et  seq. 
future,  in  contract,  117. 

tort,  118. 
in  dower,  138. 
for  trespass  to  lands,  142. 
to  reversionary  interest,  149. 
in  reversioner's  action  for  nuisance,  149. 
for  nuisance,  152. 
for  waste,  157. 
upon  real  covenants,  161. 
as  to  covenants  of  warranty,  167,  et  seq. 
in  cases  of  eviction,  1 67,  et  seq. 
on  the  covenant  for  quiet  enjoyment,  167. 

of  seisin,  186. 
as  to  covenants  against  incumbrances,  189. 
on  sales  of  land,  195. 

in  leases,  175. 

to  make  partition,  208. 
measure  of,  as  to  contracts  generally,  216,  et  seq. 
whether  motive  inquired  into  in  ascertaining,  221. 
when  contract  departed  from,  234,  et  seq. 
on  bills  and  notes,  256. 
on  policies  of  insurance,  278. 
on  sales  of  chattels,  289,  et  seq.,  291,  note  1. 
on  stock  contracts,  292,  et  seq. 
on  warranties  in  sales  of  chattels,  318. 
when  contract  rescinded,  244,  311,  324,  332. 
as  between  principal  and  surety,  340. 
agent,  372. 
as  against  common  carriers.    (See  Common  Carriers),  395,  et  seq. 
on  bills  of  lading,  395. 
on  contracts  of  affreightment,  394. 
as  to  contracts  of  forbearance,  415. 
as  to  misappropriation  of  pledges,  417. 
as  to  calls  for  stock,  419. 
refusals  to  permit  transfer  of  stock,  419. 
breach  of  promise  of  marriage,  228,  421. 

no  fixed  rule  in,  228. 
as  to  interest,  428,  et  seq. 
as  to  penalties,  447,  et  seq. 
beyond  penalty,  482,  484,  note  2. 
as  to  assignment  of  breaches,  450.  , 


INDEX.  733 

DAJNIAGES,  —  Continued. 
liquidated,  454,  et  seq. 
as  to  recoupment,  487,  et  seq. 

in  actions  of  tort.     (See  Exemplary  Damages),  512,  et  seq. 
in  cases  of  collisions,  536,  note  2. 

of  trover,  541,  et  seq.,  549,  note  1. 
of  replevin,  576,  et  seq. 
in  actions  against  sheriffs,  585,  et  seq. 
in  actions  on  the  case^  and  of  trespass,  612,  et  seq. 
under  statutes,  661,  et  seq. 

with  reference  to  pleading  and  practice,  119,  676,  et  seq. 
averment  of,  under  new  codes  of  procedure,  680,  note  2. 
with  regard  to  evidence,  691,  et  seq. 

the  power  of  the  court,  700. 
stipulated,  to  be  in  lieu  of  performance,  483. 
DAIVIAGE  clear,  690. 
particular,  29. 

special,  whether  it  can  be  recovered  in  trover,  544. 
in  action  for  false  imprisonment,  91,  note  1. 
special,  when  to  be  alleged  in  declaration,  67,  676,  et  seq. 
feasant,  distress  for  cattle,  156. 
averment  of,  676. 
DAMNUM,  derivation  of,  10. 
DAMNUM  ABSQUE  INJURIA,  27,  121. 
DAMNUM  EMERGENS,  21,  60,  88. 
DAMS,  not  complained  of,  damages  from,  147,  note  2. 

DEATH  of  a  human  being  gives  no  claim  for  damages  at  common  law,  644. 
wife,  gives  claim  for  damages,  644,  note  2. 

statutes  giving  redress  in  case  of,  645,  et  seq.,  646,  notes. 
damages  for,  under  statutes,  how  determined,  646,  note  3, 
et  seq. 
by  negligence,  pecuniary  loss  the  measure  for,  646,  notes,  et  seq. 
funeral  expenses  not  allowed  in  suits  for,  646,  note  2. 
prospective  loss  compensated  in  suits  for,  646,  note  2. 

from  child's  death,  whether  limited  to  minority,  647, 
7iote. 
legal  claim  on  decedent  for  support  not  necessary  to  maintain  action, 
647,  note. 
DEBT,  action  of,  447. 
on  bond,  447. 

interest  cannot  be  assessed  in  damages  in,  442. 
DEBTS  of  plaintiff  paid  by  trespasser,  no  mitigation  of  trespass,  641. 
payable  in  specific  articles,  267. 
agreement  to  pay  in  installments,  247. 
DECEIT,  47,  655. 


734  INDEX. 

DECLINE  in  value  in  cases  of  sales,  306. 

of  contract  to  deliver  stock,  554,  note. 
DEED,  damages  for  delay  in  delivering,  83. 
DEFAMATION,  626. 

DEFAULT,  damages  after,  when  assessed  by  court,  20,  704. 
DEFENSE,  matter  of,  arising  after  suit  brought,  when  to  be  specially  pleaded, 
119. 
of  bad  workmanship,  498. 
DEFINITIONS  of  consequential  damages,  64,  et  seq. 
DEGRADATIONS,  meaning  of  the  term,  159. 
DELAY  of  carrier,  damages  for,  400,  and  note  3,  et  seq. 

in  delivering  deed,  damages  for,  83. 
DEMANDS,  when  entire,  are  indivisible,  247. 
DEMURRER,  damage  after,  when  assessed  by  the  court,  20,  704. 

to  consequential  damages  bad,  682. 
DEPARTURE  from  terms  of  contract,  how  it  affects  the  damages,  234,  et  seq. 
DEPOSIT  IN  CONTRACTS  for  real  estate,  205. 
DEPRECIATED  CURRENCY,  260,  et  seq. 
DERIVATION  OF  DAMNUM,  10. 

DESTINATION,  place  of,  fixes  value  in  actions  against  carriers,  395. 
DETINUE,  576. 
DEVIATION  from  contract,  how  it  affects  the  remedy,  284,  et  seq. 

on  voyage,  damages  for,  378,  381. 

where  policy  of  insurance  avoided  in,  381. 
DISTRESS,  illegal  damages  for,  622,  and  note  1,  641. 

injury  in  case  of,  47. 

for  cattle  damage  feasant,  156. 
DOLLARS,  261, 7iote  2. 

gold,  261,  note  2. 

silver,  261,  note  2. 

paper,  not  standard  of  value,  261,  note  2. 
DOLUS,  in  the  Roman  law,  21,  93. 
DOMAT,  cited,  4,  23,  33,  338. 
DOUBLE  DAMAGES  by  statute,  662,  671. 
DOUMOULIN,  cited.     (See  Molin^usJ,  336. 
DOWER,  rule  of  damages  in,  138. 

in  South  Carolina  and  Ohio,  139,  note. 

writ  of,  126. 

unde  nihil  habet,  126. 

damages  for  withholding  in  New  York,  139. 

right  of,  in  improvements,  141. 

when  heir  improves,  141. 

when  purchaser  improves,  141. 

if  the  land  has  depreciated,  141. 
DURANTON,  cited,  60. 


INDEX.  735 

EDICTUM  EDILIUM,  1G3,  and  note. 
EJECTMENT,  damages  in,  12G,  e<  seq. 

suit,  costs  of,  recoverable  in  action  for  mesne  profits,  135. 

nominal  damages  in,  128. 

actual  damages  in,  129. 

improvements,  whether  allowed  for  in,  131,  135. 
ELECTION  to  recoup,  503. 

of  remedies  (trover,  trespass,  assumpsit),  41,  42,  541. 

of  time  to  fix  value  in  trover,  555,  note. 
EMINENT  DOMAIN,  compensation  when  the  right  is  exercised,  GG2,  e<  seq. 

and  note. 
ENDORSEMENTS,  332. 

ENTICING  APPRENTICES  AND  SERVANTS,  damages  for,  96,  111,  635. 
EQUITY  differs  from  common  law  as  to  damages,  how,  8,  9. 

damages  in,  under  Sir  II.  Cairn's  act,  8,  note  1. 

can  it  enforce  payment  of  premium  on  foreign  debt  by  defaulting  trus- 
tee? 266,  note. 
ERROR,  damages  on  aflfirmance  of  writs  of,  443. 
ESCAPE,  action  for.     (See  Sheriffs),  589,  et  seq. 

former  uncertainty  of  rule  for,  218. 
ESTOPPEL  as  the  liquidation  of  damages,  698. 
ESTREPEMENT,  writ  of,  127. 
ETHELBERT,  laws  of,  12. 
EVICTION,  damages  for,  U7,et  seq. 

under  the  civil  law,  163. 

under  the  French  code,  165. 

in  England,  166. 

in  the  United  States,  167,  et  seq. 

in  North  Carolina,  168. 

in  New  York,  168. 

in  Massachusetts,  177. 

in  Maine,  179. 

in  Connecticut,  179. 

in  South  Carolina,  180. 

in  New  Hampshire,  180. 

in  Virginia,  181. 

in  Tennessee,  181. 

in  Kentucky,  181. 

in  Ohio,  182. 

partial  damages  upon,  182. 

need  not  be  by  suit,  167. 
EVICTION  PARTIAL,  damages  on,  182. 

EVIDENCE  of  consequential  injury,  effect  of,  as  ingredient  in  the  cause,  99, 
531,  note,  643,  660,  note  1. 

in  aggravation  and  mitigation,  223,  note  1,  636,  et  seq.,  659. 


736  INDEX. 

EVIDENCE,  —  Continued. 

generally,  as  to  damages,  G91,  et  seq.,  GOO,  note. 
of  plaintiff,  COl,  et  seq. 
of  opinions,  693,  et  seq. 
as  to  value,  310,  and  note  1,  698. 

in  equitable  action  for  damages  for  nuisance,  699,  note. 
in  patent  cases,  674,  note. 
in  trespass,  142,  658,  699,  note. 
in  widow's  action  for  personal  injuries,  699,  note. 
in  common  law  actions  of  contract,  224. 
in  action  for  injuries  to  real  estate,  699,  note. 
of  judgment  against  surety,  as  against  principal,  what,  347. 
approximate,  698. 
EXCESSIVE  DAMAGES,  when  verdicts  set  aside  on  account  of,  707. 
EXCHANGE,  bills  of,  damages  on,  265,  note  1,  270,  et  seq. 

par  of,  only  recoverable  on  sales,  318. 
EXCHEQUER  formerly  part  of  Aida  Regis,  19. 
EX  CONTBACTU  ACTIONS,  216. 
EXCUSE,  by  act  of  God,  235,  note  2. 
EX  DELICTO  ACTIONS,  515. 

EXECUTORY  CONTRACTS  OF  SALE,  right  to  return  property  in,  when 
agreement  broken,  246. 
distinguished  from  executed,  294. 
EXEMPLARY  DAMAGES,  34,  105,  517,  et  seq.,  528,  note  1. 
not  recoverable  against  representatives,  526,  532,  note. 

in  amicable  actions,  525. 
in  contracts,  223,  note  1. 

for  sale  of  real  estate,  204,  227. 
a  departure  from  general  principle,  530,  note. 
doctrine  of,  settled,  529,  note. 
how  far  under  control  of  court,  533,  note. 
in  vai-ious  cases,  529,  note. 
in  suits  for  infringing  patents,  673,  note  1. 
for  act  amounting  to  a  criminal  offense,  530,  note. 
not  unconstitutional,  530,  note. 
how  far  subject  to  measurement,  531,  7iote. 
allowance  of  counsel  fees  as,  531,  note. 
whethef  allowed  for  negligence,  532,  note. 
principals'  liability  to,  532,  note. 
executors,  &c.,  not  liable  for,  532,  note. 
malice  to  third  persons  not  ground  for,  532,  note. 
synonyms  of  the  term,  533,  note. 
not  allowed  in  equity,  9,  note,  533,  note. 
in  suits  against  sheriffs,  602,  et  seq. 
in  seduction,  631,  and  note  2,  651,  note  2. 


INDEX.  737 

EXEMPLARY  DAMAGES,  —  Continued. 

not  recoverable  for  loss  of  service,  except  from  seduction,  525,  526. 

in  trespass  to  lands,  144,  528,  note,  699,  note. 

remote  consequences,  how  far  allowed  as,  531,  note. 
EXPENSES  sustained,  87. 

of  litigation  (See  Litigation),  84,  note  1,  326. 
EXPERTS,  testimony  of,  696,  et  seq. 
EXTENTS  against  sureties,  costs  in,  365. 

FACT,  questions  of,  decided  by  the  jury,  19. 

FACTORS,  378. 

FAILURE  OF  TITLE,  partial,  182. 

FALSE  IMPRISONMENT,  damages  in,  48,  649. 

special  damages  in  action  for,  91,  note  1. 
FALSE  REPRESENTATIONS,  damages  in  case  of,  100,  et  seq.,  338,  note  2, 

et  seq.,  658,  662. 
FEELINGS,  injury  to,  not  laid  as  special  damages,  637,  note  2. 

damages  not  allowed  for,  when,  652,  note  657. 

when  allowed  for,  631,  note  1,  654,  note  1. 
FELONY,  where  tort  amounts  to,  544. 
FENCES,  agreement  to  erect,  219, 7iote  2. 
damages  for  neglect  to  repair,  95. 
for  removal  of,  103. 
FERRY,  covenant  to  maintain,  211. 
FIRE,  damages  for  setting,  107. 

for  negligent  destruction  by,  when  too  remote,  91, 7iote  1. 
FIRE  INSURANCE,  289. 
FLOODING  LAND,  damages  for,  46,  94,  151,  and  note  2. 

arising  from  dams  other  than  the  one  complained  of,  147,  note  2. 
statutes  as  to,  677. 
FLUREAU  V.  THORNHILL,  rule  in,  does  not  apply  to  executed  contracts, 

69,  note  1. 
FLUCTUATIONS  IN  VALUE  under  continuing  agreements,  256. 

in  trover,  554,  note  1. 
FORBEARANCE,  damages  on  contracts  for,  226,  420. 

actual,  how  affects  damages  on  contracts,  421,  note  1. 
FORCIBLE  ENTRY  AND  DETAINER,  149,  note. 
FOREIGN  CONTRACTS,  rules  of  damages  as  to,  267,  270,  note  1,  323. 
«  FORFEIT  AND  PAY,"  meaning  of  the  phrase,  468,  in  note. 
FORMS  OF  ACTION,  37,  261. 

authorities  in  favor  of  maintaining,  37. 
abolished  in  New  York,  40,  note. 

in  various  other  States,  38,  note  1. 
general  tendency  to  abolition  of,  39. 
confusion  from,  137. 
47 


738  "  INDEX. 

FORMS   OF   ACTlOlSi,— Continued. 

do  not  exist  in  Texas  and  Louisiana,  41,  note. 

their  utility  examined,  38,  note  1,  261,  578,  note  4,  720,  et  seq. 

as  affecting  rule  in  trover,  578,  and  note  4. 

difficulties  arising  from,  in  making  scientific  division  of  subject,  3. 
FORMULA,  in  the  Roman  law,  19,  21,  707,  et  seq. 
FRANCE,  system  in,  previous  to  Code  Napoleon,  23. 
FRANCHISES,  grantees  of,  not  liable  to  damages,  123, 
FRAUD  in  contracts,  how  it  affects  damage,  227,  229,  note  1,  658,  et  seq. 

in  sales  of  chattels,  100,  et  seq.,  338,  339,  and  notes. 

resulting  in  damages  always  gives  cause  of  action,  27. 

whether  it  aggravates  damages  in  actions  ex  contractu,  227,  et  seq.,  229, 
note  1. 

in  stipulation  for  damages,  460,  note  2. 

in  actions  of  case  or  trespass,  658. 

in  sale  of  lands,  225,  et  seq.,  234,  661,  et  seq. 

does  not  necessarily  affect  the  court's  control  of  the  measure  of  dam- 
ages, 658. 

general  conclusion  as  to,  226. 

rule  in  California  as  to,  226. 
FREEDOM,  suits  for,  657. 
FREIGHT  not  furnished,  damages  for,  411. 

when  can  be  recouped  for  damages  from  bad  stowage  or  other  negli- 
gence of  carrier,  518. 

allowed  as  damage  in  collision  cases,  541,  note  1. 
FRENCH  SYSTEM,  evidence  as  to  motive  admitted  in,  61. 
FRIVOLOUS  SUIT,  no  redress  for,  beyond  costs,  107. 
FUNERAL  EXPENSES  in  suits  for  death  by  negligence,  652,  note. 

GENERAL  ISSUE,  whether   defences  arising   after   suit   brought,  can  be 

shown  under,  119, 
GLOUCESTER,  statute  of,  127. 
GOLD  coin  of  United  States,  271,  note. 

dollars  or  units  of  value,  271,  note. 

coin  payable  as  money,  269,  note. 
sold  as  merchandise,  270,  note. 

bearing  earth,  damages  for  removing,  629,  note  1. 
GOOD  AND  BAD  FAITH,  how  far  affect  damages  generally,  231,  et  seq. 
GOVERNMENT,  agents  of,  not  liable  for  consequential  damages,  123,  124. 
GRAHAM,  on  new  trials,  referred  to,  4. 
GRADING  STREET,  damages  in,  121. 

GRANTEES  of  franchises,  when  liable  for  damages,  120,  et  seq. 
GROUNDLESS  SUITS,  104,  642. 
GUARANTIES  (See  Indemnities),  340,  et  seq. 

on  contract  for  sale  of  real  estate,  205,  note  2. 


INDEX.  739 

HADLEY  V.  BAXENDALE,  rule  in,  78,  79,  80,  81,  82,  85,  87,  311,  328, 329, 
400,  401,  402,  410,  413. 

does  not  apply  to  actions  of  tort,  85. 
HAENEL  on  damages,  cited,  22. 
HASSE  on  Culpa,  cited,  22. 

HIGHWAYS,  opening  of,  damages  for,  662,  note  2,  666,  7iote  1. 
HINDOO  LAW  as  to  damages,  20. 
HIRE,  424,  and  note  2. 

of  slaves,  424. 
HOEL  DDA,  his  laws,  14,  note. 
HORSES,  damages  on  breach  of  warranty  of,  320,  et  seq. 

value  of,  how  proved,  695. 
HUBERUS,  cited,  337,  338. 
HUNDRED,  damages  in  actions  against,  92. 

ILLEGAL  ACTS,  95. 

entries  on  real  estate,  143,  621,  note  2,  622,  note  2,  623,  624,  notes. 

distress,  622,  note  1. 

seizure,  636. 

property  not  protected,  641. 
IMPLIED  CONTRACTS,  254. 

warranty  on  sales  of  notes,  267. 

of  personal  property,  318,  et  seq.,  324,  327,  note  1. 
IMPROVEMENTS,  when  allowed  for  in  ejectment,  131. 

when  in  trespass  for  mesne  profits,  135. 

when  allowed  for  in  case  of  eviction,  167,  note  2. 
IMPUTATIO,  meaning  of  the  term. 

INADEQUACY  OF  CONSIDERATION  will  not  alone  defeat  contract,  232. 
INCUMBRANCES,  covenant  against,  189. 

cases  for  breach  of,  in  New  York  and  New  England,  190. 

payment  of,  after  suit,  193. 

outstanding,  193,  et  seq. 

covenant  against,  in  Pennsylvania,  195. 
INDEBITATUS  ASSUMPSIT,  when  maintainable,  2U,note  1,  238,  note  1. 
INDEFINITE  DAMAGES,  40. 
INDEMNIFY,  covenant  to,  342,  348,  et  seq. 
INDEMNITIES  (See  Principal  and  Surety),  340,  et  seq. 
INDEMNITORS,  liability  of,  for  costs,  362,  et  seq. 
INDEMNITY,  exceptions  to  rule  of,  in  insurance,  280. 
INDORSEMENTS,  332. 

INGREDIENT  in  cause,  when  fact  received  as,  and  not  as  measure  of  dam- 
ages, 99. 
INJUNCTION,  damages  for  breach  of,  453,  note  1. 

bonds,  damages  on,  453,  note  1. 

expense  of  opposing  and  setting  aside,  453,  note  1. 

of  obtaining,  to  protect  trade-mark,  673,  note  1. 


740  INDEX. 

INJURIA  SINE  DAMNO,  28,  43. 
INJURY,  possible,  45. 

in  case  of  illegal  distress,  47. 

probable,  46. 

implied  by  law,  45. 

threats  of,  83. 

personal,  648,  note  2. 

to  child,  636. 

by  animals,  670. 
INSOLVENCY  of  debtor,  mitigates  damages  in  escape  suits,  588,  et  seq. 

partial,  how  shown  in  mitigation  in  escape  suits,  595,  note  1,  599. 
INSURANCE  not  deducted  in  collision  cases,  536,  note. 

on  life  not  deducted  in  statutory  action  for  death  by  negligence,  645, 
note  3. 

covenant  for,  in  lease,  214. 

damages  in  suits  on  policies  of,  252,  278,  et  seq, 

partial  loss  in,  281. 

rule  of  one  third  new  for  old  in,  281. 

total  loss  in,  279. 

general  average  claims  in,  282. 

marine,  278,  note  2. 

against  fire,  283,  et  seq. 

on  lif^  287. 
INSURANCE  BROKERS,  375,  et  seq. 
INTENT  in  trespass  goes  only  to  damages,  517,  524,  612. 

in  tort  material,  517. 
INTEREST  on  bills  and  notes,  257,  275. 

referred  to  as  compensation  by  Marshall,  33. 

in  case  of  breach  of  covenants  for  title  to  real  estate,  178,  note  1. 

generally,  63,  note  2,  256,  et  seq.,  428,  433. 

where  a  matter  of  right,  429. 

allowed  where  usage,  432. 

not  allowed  on  unliquidated  demands,  432. 

allowed  where  express  promise,  432. 

in  actions  against  carriers,  395,  et  seq. 

always  allowed  where  time  of  payment  is  definite,  429. 

not  implied  where  time  of  payment  is  indefinite,  430. 

as  between  principal  and  agent,  434. 

difference  between  American  and  English  rule  as  to,  438. 

in  error,  443. 

in  actions  of  tort,  87,  note  1,  441. 

on  policy  wrongly  withheld,  429,  note  1. 

in  cases  of  fraud,  431. 

when  recoverable  by  surety,  431. 

on  balance  with  banker,  434,  note  2. 


INDEX.  74 1 

INTEREST,  —  Continued. 

special  rules  as  to  allowance  of,  434,  et  seq. 

on  demands  not  payable  in  money,  437. 

as  damages,  440,  672. 

on  judgments,  444. 

after  payment  of  principal,  445. 

stopped  by  attachment  against  party,  445. 

as  to  penalties  of  bonds,  484. 

in  replevin,  579. 

in  actions  against  sheriffs,  588,  note. 

on  rent,  437. 

compound,  439,  et  seq. 

when  in  discretion  of  the  jury,  440,  et  seq. 

when  allowed  in  trover,  441,  567. 

in  the  action  of  debt,  442. 

on  value  of  merchandise  sold,  588. 
INVESTIGATION  of  title,  attorney's  negligence  in,  588,  note. 

JEWISH  LAW  as  to  damages,  20. 

JOINDER  of  good  and  bad  counts,  685. 

JOINT  TORTS,  688. 

JUDEX,  office  of  the,  imder  the  Roman  law,  19,  21,  701. 

JUDGE,  power  of,  relatively  to  jury,  700. 

JUDGMENT  against  surety  evidence  against  principal,  when,  347,  365. 

when  considered  equivalent  to  payment,  and  when  not,  351. 

creditor  may  have  damages  against  party  interfering  with  his  lien,  614. 

arrest  of,  686. 

in  trover,  effect  of,  574,  et  seq. 

assignment  of,  425. 
JURISDICTION  of  U.  S.  courts  as  to  amount,  682. 

as  to  amount  in  tort,  how  determined,  633,  note  1. 
JURY,  its  origin,  18,  704. 

power  of,  over  the  subject  of  damages,  20,  217,  700,  et  seq. 

early  indefiniteness  of  its  powers,  704. 

called  "  Chancellors,"  19,  217,  459. 

discretion  of,  as  to  interest,  440. 

as  to  value  destroyed  in  trespass,  619. 

how  far  subject  to  control  of  court,  700. 

how  allowed  to  compute  damages,  712. 

early  discretion  of,  217. 

trial  by,  to  what  actions  most  appropriate,  82,  note. 
JUSTIFICATION,  plea  of,  in  actions  for  breach  of  promise,  422,  note  3. 

in  libel  and  slander,  629,  and  note  1. 
JUSTINIAN'S  LAWS  as  to  damages  for  broken  contracts,  289. 

code,  definition  of  damages  in,  21. 


742  INDEX. 

KAIMS,  Lord,  cited,  as  to  damages  at  law,  1. 
as  to  consequential  damages,  63. 
as  to  bonds,  448. 

LADING,  bills  of,  damages  on,  394. 
LAND,  payment  made  by,  360. 

flooding,  114,  note  2,  147,  and  notes. 
LAND  CERTIFICATES,  contract  to  transfer,  207. 
LANDLORD  AND  TENANT,  208,  et  seq. 
LANDOWNERS,  rights  of,  149. 
LAW,  questions  of,  are  for  the  court,  705. 

wager  of,  17. 

civil  and  common,  difference  between,  59. 

Justinian's,  as  to  contracts,  289. 

Anglo-Saxon,  11,  et  seq. 

civil  (See  Civil  Law),  23,  57,  123,  163,  et  seq.,  335. 
warranty  under,  335,  et  seq. 

Hindoo,  20. 

Jewish,  20. 

Roman,  21,  132,  289. 

common,  25. 
LEASES,  damages  as  to,  175,  and  notes  1  and  2,  176,  and  note  1,  177,  208,  426, 
460. 

contracts  for,  208,  note  2. 

rule  as  to  covenants  in,  175,  208. 
LEGAL  RELIEF,  incompleteness  of,  714. 

irregularity  of,  714,  715. 
LEGAL  TENDER  NOTES,  261,  note  2,  et  seq. 
LEGES  iETHELBIRHTI,  12. 

LESSEE  and  sub-lessee,  damages  and  costs  between,  370. 
LESSOR  and  lessee,  83,  151,  210,  note  1,  211,  et  seq.,  673. 

remote  damages  in  suit  between,  83. 
LEX  A  Q  UlLIA,  22,  662. 

LIABILITY,  when  stands  in  place  of  actual  damage,  112,  252,  351. 
LIBEL,  626. 

LIEN,  damages  under,  in  trover,  557. 
LIEN  LAW  in  New  York  city,  673. 
LIENORS,  actions  by,  557,  614. 
LIFE,  value  of,  426,  note  2. 

not  calculated  by  annuity  tables  in  suits  for  death,  646.  note  2. 
LIFE  INSURANCE,  measure  of  damages  on  policy  of,  287. 
LIFE  POLICY,  whether  money  collected  on,  to  be  allowed  defendant  in  suit 

for  death  of  insured  ?  645,  note  3. 
LIMITATIONS,  statute  of,  how  affects  consequential  damages,  113. 

claim  for  mesne  profits,  132,  et  seq. 

when  to  be  pleaded,  683. 


INDEX.  743 

LIQUIDATED  DAMAGES,  454,  et  seq. 

in  case  of  fraud,  455,  note  2. 

agreement  to  stop  business,  467.  • 

as  to  interest  and  usury,  457,  484,  note  2. 
LITIGATION,  costs  and  expenses  of,  84,  note  1,  326,  331,  note  2. 

in  case  of  warranty,  326,  330. 

false  representations,  84,  note  1. 
fraud  in  sale  of  lands,  656,  note  1. 

as  between  principal  and  surety,  362. 

and  agent,  379,  392,  note  1. 

in  trespass,  615,  note  1. 
LITIS  ^STIMATIO,  what,  21. 
LOG  A  TIO  REI,  424,  note  2. 
LOGO  FAGTI IMPRMSTABILIS,  &c.,  216. 

LOSS,  actual,  only,  compensated  in  general  (See  Actual  Loss),  345,  ei  seq., 
359. 

uncertain,  85. 

partial,  in  insurance,  279,  281. 

total,  in  insurance,  279. 

total  constructive,  282. 

liability  for,  how  far  ground  of  recovery,  351,  et  seq. 
LOUISIANA,  action  of  restitution  in,  334. 

sequestration  proceedings  in,  584. 

code  of,  its  provisions  as  to  damages,  226,  note. 

forms  of  action  do  not  exist  in,  40,  note. 
L  UGR  UM  CESSANS,  21,  60. 
LUNATIC,  liable  in  damages  for  acts  of  trespass,  518,  and  note  1. 

MALICE,  material  in  slander,  628,  note  2. 
MALICIOUS  PROSECUTION,  89,  100,  642,  647. 

action  for  counsel  fees  in,  107. 
MANDAMUS  with  reference  to  nuisances,  153,  note. 
MARINE  INSURANCE,  278,  and  note  2. 

MARRIAGE,  breach  of  promise  of,  damages  for,  228,  421,  et  seq. 
MARKET  PRICE  on  day  of  breach  fixes  measure  of  damages,  309. 
MARKET  VALUE,  when  allowed,  73. 

sometimes  represents  profits,  68,  note  1. 

how  determined,  291,  note  1,  309,  310,  note  1,  396,  note  3. 

in  trover,  not  always  restricted  to  place  of  conversion,  542,  note  2. 

of  boats,  536,  note  2. 
MASSACHUSETTS,  legislation  of,  as  to  forms  of  action,  39,  note. 

as  to  survival  of  actions  of  tort,  530,  note. 
MASTER  AND  SERVANT,  damages  as  to,  388,  3S9,  note  2. 
MAYHEM,  former  power  of  court  as  to  damages  for,  704,  note  1,  705,  note. 
MAYNE,  treatise  on  the  law  of  damages,  1. 
MARLBRIDGE,  statute  of,  127. 


744  INDEX. 

MEASURE  OF  DAMAGES  defined,  3. 

is  usually  matter  of  law    (See    Compensation),  218,  648,  712,  and 
note  1. 
MENTAL  SUFFERING,  when  compensated,  626,  note  1,  646,  note  2,  648, 

note  2,  651. 
MERGER  of  tort  in  felony,  539. 
MERLIN,  cited,  25. 
MERTON,  statute  of,  127. 
MESNE  PROFITS,  action  for,  129,  132,  et  seq. 

general  rule  in,  135. 

measure  of,  133,  and  note  1. 

costs  of  ejectment  suits  recoverable  in  action  for,  135. 

allowance  for  improvements  in,  131,  133,  note  1,  135,  137,  note  1. 
for  costs  of  ejectment  suit,  135. 

recovery  of,  in  New  York  and  other  States,  129,  note,  137,  note  2. 

equitable  defenses  in,  135. 

statute  of  limitations  applied  to,  137,  and  note  2. 
MILLDAM,  damages  for  injury  to,  147. 

covenant  to  repair,  213. 
MILLS,  profits  of,  by  reason  of  steam-engine  not  being  furnished,  77. 

damages  to,  147,  et  seq.,  213,  note  2. 
MINING,  622,  et  seq. 

license,  profits  disallowed  in  action  for  violation  of,  73. 
MISCHIEVOUS  ACTS,  95. 
MISJOINDER  of  counts,  685. 
MITIGATION  of  damages  as  to  common  carriers,  404. 

as  to  breach  of  promise  of  marriage,  422,  et  seq.,  and  notes. 

in  trover,  568,  et  seq. 

in  replevin,  582,  583. 

in  actions  against  sheriffs,  588,  594,  596,  et  seq. 
carriers,  404. 
of  slander  and  libel,  627,  636. 
of  tort,  636,  et  seq. 

in  trespass,  627,  640,  and  note  3. 

to  person,  636,  and  note  3,  639,  note  1,  et  seq. 

in  malicious  prosecution,  642,  note  2. 
MOLIN^US,  cited,  336. 
MORTGAGE,  giving  of,  not  payment,  354. 

MORTGAGEE,  damages  of,  against  party  interfering  with  his  security,  614, 
and  note  3. 

when  entitled  to  nominal  damages  only,  53,  note  1. 

action  by,  for  injury  to  his  interest,  614,  note  3. 
MOTIVE,  evil,  when  considered  in  sales  of  real  estate,  197,  et  seq.,  227. 
in  tort,  124. 

objections  to  considering  in  tort,  124. 


INDEX.  745 

MOTIVE,—  Continued. 

in  action  on  contract,  221,  et  seq.,  223,  note  1,  226,  note  1. 
how  far  considered  in  South  Carolina,  221,  note. 
tendency  of  the  law  as  to,  223. 
evidence  as  to  admitted  in  France,  61. 

NATURAL,  meaning  of  the  term,  65. 

NAVIGABLE  WATER,  particular  damages  in  cases  of  obstruction  of,  29. 

NEGLIGENCE  in  agent  (See  Principal),  373,  et  seq.,  380,  et  seq. 

on  both  sides,  effect  on  plaintifTs  right  of  recovery,  101,  et  seq.,  153, 
534. 

of  decedent,  in  statutory  suit  for  death,  646. 

of  county  clerk,  608,  note  2. 

of  sheriffs  and  other  officers  (See  Sheriffs),  586,  et  seq. 

gross,  whether  subject  to  punitive  damages,  532,  note,  644,  note  2. 
NEGOTIABLE  PAPER,  257. 
NEW,  one  third,  for  old,  in  insurance,  281. 
NEW  TRIALS,  Graham  on,  4. 
NEW  YORK  CODE  OF  PROCEDURE,  its  provisions  as  to  damages,  39. 

proposed  civil  code,  its  provisions  as  to  exemplary  damages,  532,  note. 
NOMINAL  DAMAGES,  43,  et  seq. 

for  illegal  distress,  47. 

for  trespasses  to  lands,  44,  et  seq. 

principle  of,  recognized  in  America,  51. 

for  trespass  to  property,  55,  note  2. 

for  flowing  lands,  45. 

for  detention  of  debt,  458. 

for  breach  of  partnership  agreement,  100,  note  1. 

against  sheriffs,  49,  592,  et  seq.,  594,  note  1. 
carriers,  404. 

in  actions  on  contracts,  50,  et  seq. 

on  contracts  to  sell  specific  stock,  53,  note  1. 

for  breach  of  covenant,  344,  note  2. 

in  ejectment,  128. 

between  principal  and  agent,  374. 

in  suit  for  false  imprisonment,  48. 

in  suits  brought  by  reversioners,  46. 

in  actions  of  slander,  49. 

for  diversion  of  watercourses,  47. 

in  actions  on  patents,  49. 

in  actions  of  trover,  564. 

as  affecting  costs,  53,  et  seq. 
•    as  establishing  title,  44. 

in  actions  for  private  letters,  54,  note. 

in  tort,  54,  note  2. 

differences  between  Scotch  and  English  law  of,  55,  note. 


746  INDEX. 

NOTE  of  corrections  and  additions,  717. 
NOTES,  (promissory),  damages  on,  257,  260. 

sales  of,  and  implied  warranty  on,  267. 

payable  in  specific  articles,  267,  et  seq. 

in  depreciated  paper,  261,  note  2. 

when  treated  as  money,  353. 

payment  by,  354,  et  seq. 

not  payment  unless  so  agreed,  358. 
NOTICE  of  one  party  only  has  no  effect  to  rescind  agreement  of  sale,  316. 

of  non-payment  by  banker,  377. 

by  surety  to  principal  of  suit,  effect  of,  364,  etseq. 

to  repair,  212,  note  1. 
NUISANCES,  damages  as  to,  28,  151,  ei  seq. 

rule  in  New  York,  152. 

in  Connecticut,  153. 

continuing,  155. 

how  far  defendant  liable  after  having  parted  with  possession  or  title,  155. 

OBLIGATION  or  bond,  form  of,  448. 
ODIUM  SPOLIATORIS,?>m. 
OFFENSES,  composition  of,  30. 
OFFICERS,  49. 

public,  damages  against,  585,  et  seq.,  608. 

public,  sales  by,  392,  note  2. 

suits  between,  396,  459,  note,  605. 
ONUS  PROBANDl,  as  to  agents,  384. 

as  to  sheriffs,  590,  595,  note  1. 

in  cases  of  partial  insolvency,  595,  Mo^e  1. 
OPPRESSIVE  CONTRACT,  233. 
ORDEAL,  trial  by,  16. 
OVERFLOW  of  land,  114,  147,  notes. 

PALGRAVE,  cited,  12,  13,  14. 
PAPER,  negotiable,  257. 

accommodation,  266. 
PAROL  PROOF,  when  admissible  as  to  consideration,  184. 
PART  PERFORMANCE  of  contracts,  damages  in  cases  of,  234,  et  seq.,  236, 

note. 
PARTIAL  EVICTION,  damages  on,  182,  et  seq. 

insolvency,  in  actions  against  sheriffs,  how  far  defense,  595,  note  1. 

failure  of  title,  182. 

loss  (See  Insurance),  279,  281. 
PARTICULAR  DAMAGE,  29. 

in  cases  of  obstruction  of  navigable  water,  29. 
PARTITION,  covenant  to  make,  207,  208. 


INDEX.  747 

PARTNERS,  torts  to,  what  redress  for,  642. 

damages  recoverable  by,  in  suits  against  sheriffs,  563, 
PARTNERSHIP,  breach  of  agreement  of,  100,  7iote  1. 

prospective  damages  in,  100,  note  1. 

agreement  to  pay  debts  of,  220,  note  3. 
PARTY  TO  SUIT,  testimony  of,  at  common  law,  691,  et  seq. 

under  new  codes  of  practice,  693. 
PATENTS,  damages  in  suits  for  infringement  of,  34,  49,  108.  673,  et  seq. 

how  far  profits  lost  allowed  as  damages  for  infringing,  674,  note  1. 
PATENT  SUITS,  counsel  fees  in,  no  longer  allowed,  673,  note  1. 

vindictive  damages  in,  674,  note  1. 

customary  charge  for  rights  the  measure  in,  674,  note  1. 

no  right  of  action  except  for  actual  damage  in,  49. 
PAYMENT,  when  agreed  to  be  made  in  specific  articles,  267. 

made  in  land  or  other  property,  206,  360,  et  seq. 

after  suit  brought,  whether  allowed  in  damages,  115,  119,  513. 

of  price  in  advance,  how  far  it  affects  damages,  292,  306,  note  1. 
according  to  Scotch  law,  307,  et  seq. 

what  is,  as  between  principal  and  surety,  358,  et  seq. 

what  is,  of  a  physician's  or  attorney's  bill,  115. 

by  note  or  bond,  «&;c.,  352,  et  seq. 

by  mortgage,  362. 

by  conveyance  of  land,  353. 

by  transfer  of  other  property,  361. 
PENALTIES,  447. 

general  rule  as  to,  448,  et  seq. 
PENALTY  of  bond,  damages  within,  449,  483. 

beyond,  482. 

recovery  of,  ends  claim,  482. 
PERFORMANCE,  partial,  how  it  affects  the  damages,  234,  et  seq. 

leading  cases  as  to,  235,  note. 

delicate  questions  as  to,  235. 

rule  in  Vermont  as  to,  237. 

rule  in  Britton  v.  Turner,  as  to,  240. 
PERSONAL  INJURY,  deprivation  of  liberty  is  always,  649,  note. 

future  disability  from,  to  be  compensated,  648,  note,  2. 

loss  of  profits  from,  compensated,  649,  note. 

mental  distress  from,  compensated,  648,  note. 

no  fixed  measure  of  compensation  for,  613,  note  1,  649,  note. 

damages  for,  613,  648,  note  2, 
PERSONAL  PROPERTY,  trespass  for,  612,  etseq. 

taken  in  trespass  to  real  estate,  damages  for,  625,  and  notes. 

actions  relating  to,  216,  et  seq. 

payment  by,  360. 

wrongfully  taken,  return  of,  640. 


748  INDEX. 

PETITION  of  right,  does  not  lie  for  damages,  690. 

PETROLEUM,  trespass  or  trover  for,  623,  note  1. 

PLACE  of  inquiry  in  fixing  market  value,  310,  and  note  1,  542,  note  2. 

PLAINTIFF,  option  of,  to  reduce  verdict,  709. 

PLEA,  jt)Mi5  darrein,  119. 

to  damage,  bad  unless,  &c.,  682. 
of  non-damnijicatus,  348. 
PLEADING,  with  reference  to  damages,  676,  et  seq. 

under  new  codes,  37,  note  \,et  seq.,  227,  note,  678,  note,  680,  note  2,  682, 
note  1. 
PLEADINGS,  recovery  often  dependent  on  proper  averments  in,  67. 
PLEDGES,  misappropriation  of,  417,  et  seq.,  556. 
POLICY  of  life  insurance,  assignment  of,  427,  note  1. 
POSSESSION,  injury  to,  143,  note  2. 
POSSIBILITY  of  an  injury,  whether  sufficient  to  create  a  claim  for  damages, 

45. 
POTHIER,  cited,  24. 

illustrations  of  principles  of  civil  law,  57. 
as  to  consequential  damages,  57. 
POUND  STERLING,  exchange  for,  265,  note  1.  » 

value  of,  in  this  country,  265,  note  1. 
PRACTICE,  with  reference  to  damages,  676,  et  seq. 

PREMIUM  of  insurance,  whether  recoverable  against  ship-owners  for  a  de- 
viation whereby  policy  is  avoided,  381,  and  7iote  2. 
on  gold,  261,  note  2,  et  seq. 
note,  trover  for,  566,  note  2. 
PRESUMPTIONS,  effect  of,  as  evidence,  697. 

as  to  value,  543,  and  note  2. 
PRETIUM  AFFEGTIONIS,  63,  542. 
PRICE  of  chattels  does  not  fix  value,  319. 

paid  in  advance,  292,  306,  note  1. 
PRINCIPAL  and  surety,  measure  of  damages  as  to,  80,  et  seq.,  340,  et  seq. 

actual  loss  by  surety  must  be  shown,  341,  et  seq.,  345. 
effect  of  notice  to  principal  of  suit,  363,  et  seq. 
and  agent,  damages  as  to,  372,  etseq. 

actual  loss  the  criterion  of,  380. 
and  insurance  agent,  375,  et  seq. 
liability  of,  for  acts  of  agent,  372. 
liability  to  agent,  388,  391,  397. 
PRIVATE  PROPERTY,  compensation  for,  when,  662,  et  seq. 
PRIVATEERS,  damages  awarded  against  them,  70. 
PROFITS,  loss  of,  when  allowed  in  damage,  68,  et  seq. 
in  cases  of  capture,  69,  70. 

of  collision,  71,  536,  note  2. 
in  cases  of  sales,  71. 
in  executory  contracts,  72,  413. 


INDEX.  749 

PROFITS,  —  Continued. 

loss  of,  disallowed  in  action  for  violation  of  mining  license,  73. 
in  case  of  wrongful  attachment,  70. 

of  insurance,  73. 
contingent,  1\,  et  seq. 

in  action  for  price  of  steamboat,  71. 
direct,  75,  et  seq. 
on  construction  of  aqueduct,  77. 

of  mill,  by  reason  of  steam-engine  not  being  furnished,  77. 
in  tort,  86,  88,  et  seq. 
in  action  for  libel,  99. 

for  malicious  prosecution,  100. 
in  actions  for  breach  of  partnership  agreement,  100. 
against  agents,  382,  et  seq. 

carriers,  81,  note,  401,  note. 
for  trespass,  613, 7iote  3. 
in  suits  for  infringement  of  patents,  673,  note  1. 
PROMISE  OF  MARRIAGE,  breach  of,  228,  421. 
PROMISSORY  NOTES  (See  Notes),  damages  on,  257,  et  seq. 
PROOF,  burden  of,  as  to  agents,  384. 

as  to  sheriffs,  590,  595,  note  1. 
PROPERTY,  contracts  for  delivering  in  future,  246. 
to  be  paid  in,  220. 
personal,  auction  sales  of,  392. 
PROSPECTIVE  DAMAGES,  what,  when  allowed,  110,  et  seq.,  246. 
in  reference  to  pleading,  110,  680. 
under  continuing  agreements,  116,  246,  et  seq. 
PROSPECTIVE  LOSS  compensated  in  suits  for  death  by  negligence,  647, 

note. 
PROTEST  of  bills  for  non-payment  and  for  non-acceptance,  270,  et  seq. 

damages  for,  on  note,  271,  note  1. 
PROXIMATE  DAMAGES,  64,  65. 
PUBLIC  improvements,  662,  note  2,  et  seq. 

wrongs,  no  private  remedy  for,  unless  particular  damage,  28,  29,  152. 
PUNITIVE  DAMAGES  (See  Exemplary  Dajiages),  533,  note. 
PURCHASER  OF  CHATTELS,  damages  against,  312. 

QUALIFICATION  of  land-owners'  rights,  149. 
QUANTUM  MERUIT,  236,  note,  254. 

VALEBAT,  254. 
QUARE  IMPED  IT,  damages  in,  126. 
QUIET  ENJOYMENT,  covenant  for,  167,  186,  et  seq. 
rule  for  breach  of,  in  American  States,  167. 
in  North  Carolina,  168. 
in  New  York,  168. 


750  INDEX. 

RAILWAY  ACT  in  New  York,  672. 

RAILWAY  SHARES,  damages  for  non-delivery  of,  292,  et  seq. 

damages  for  non-acceptance  of,  315,  et  seq. 
RAILWAYS,  damages  for  opening,  662,  667. 
REAL  ACTIONS,  damages  in,  126,  et  seq.,  161,  et  seq. 
REAL  COVENANTS,  161,  et  seq. 

REAL  ESTATE,  agreement  for  sale  and  purchase  of,  195-207. 

damages  on  breach  of,  195-207. 

fraud  in  sale  of,  655,  et  seq. 
RECEIPTORS,  damages  in  actions  against,  606. 
RECOUPMENT,  487,  et  seq. 

limit  of  compensation  in  cases  of,  35. 

its  original  meaning,  491. 

modern  use  of  the  term  in  the  United  States,  491. 

American  doctrine  of,  494. 

early  English  rule  as  to,  492. 

reversal  of,  492. 

modern  English  rule  as  to,  508. 

in  actions  for  work  and  labor,  492,  et  seq. 

does  not  apply  to  damages  after  suit,  505. 

when  in  actions  of  tort,  512. 

notice  of,  495,  505. 

doctrine  of,  as  to  sealed  instruments,  498. 

allowed,  though  both  demands  unliquidated,  502. 

as  to  real  estate,  504. 

as  to  chattels,  504, 

confined  to  subject  matter,  505. 

wisdom  of  doctrine  of,  513. 

as  to  freight,  512. 
RECOVERY,  often  dependent  on  propriety  of  averments,  67. 
RE-EXCHANGE,  acceptor  not  liable  for,  271. 

general  principles  of,  271. 
REINSURANCE,  measure  of  damages  in  actions  on  policies  of,  367. 
REMEDY,  election  of,  trover,  trespass,  and  assumpsit,  37,  note  1,  541, 

provided  by  the  common  law  for  every  injury,  25. 
REMOTE  DAMAGES  (See  Consequential  Damages),  56,  et  seq. 
REMUNERATION,  arbitrary,  in  insurance,  282,  287. 
RENEWAL  of  lease,  covenant  for,  214,  note  1. 
RENT,  damages  for  loss  of  use  of  property  in  addition  to,  87. 

apportionment  of,  209,  234. 

recoupment  for,  507. 
action  for,  234. 
REPAIR,  covenant  to,  210,  212,  note  1. 
REPAIRS  of  ecclesiastical  property,  213. 


INDEX.  761 

REPLEVIN,  damages  in,  577. 

damages  recoverable  by  defendant  in,  578. 
by  plaintiff  in,  582. 

mitigation  of  defendant's  damages  in,  582. 
plaintiff's  damages  in,  583. 

special  damage  in,  582. 

exemplary  dan)ages  in,  581. 

rule  in,  where  defendant  has  special  property  only,  580. 

time  of  valuation  of  property  in,  579,  580. 

interest  in,  579. 

actual  loss  from  defendant's  failure  to  return  property,  the  rule  in,  580, 
note  4. 

bond,  suit  on,  579. 
RESALE,  vendor's  right  of,  where  price  not  paid,  313. 
RESCISSION  OF  CONTRACTS,  244,  311,  333. 
RESTITUTION,  action  of,  in  Louisiana,  334. 
RESTS,  annual,  in  accounts,  when  allowed,  439. 
RETURN  of  property  wrongfully  taken,  640. 

of  property  sold  with  warranty,  319. 

false,  by  sheriff,  607. 
REVERSIONERS,  damages  to  the  inheritance  of,  149,  et  seq.,  159. 

often  very  difficult  to  estimate,  150. 
RIGHT  to  begin,  684. 

petition  of,  690. 

of  way,  exemplary  damages  for  obstructing,  permissible,  529,  note. 

of  dower,  writ  of,  141. 
ROADS  and  bridges,  669. 
ROMAN  LAW,  general  principles  as  to  damages,  21. 

as  to  mesne  profits,  132. 

plan  of  administering  justice,  700. 
RULES  for  construing  agreements  liquidating  damages,  479,  et  seq. 

fixed  importance  of,  715. 

SALES  OF  CHATTELS,  rule  of  the  civil  law  in,  289. 
damages  on,  as  against  vendor,  290. 
where  price  paid,  292. 
rule  in  New  York,  296. 

in  Pennsylvania,  299. 

in  Texas,  297. 

in  Connecticut,  300. 

in  Iowa,  297,  note  1. 
the  Scotch  rule,  307. 
how  value  arrived  at  in,  309. 
cases  of  part  performance  in,  311. 

of  rise  in  value  in,  292. 


752  INDEX. 

SALES  OF  CHATTELS,— Continued. 

cases  of  fall  in  value  in,  306, 

not  payable  for  in  money,  312. 

to  be  rescinded  in  toto,  if  at  all,  311. 

loss  of  profits  on,  S20,  note  1. 

as  against  purchaser,  312. 

on  credit,  where  note  or  bill  not  given,  315. 

with  warranty,  318. 

with  implied  warranty,  327,  note  2. 

consequential  damages  on,  325. 

when  fraud  in,  right  to  rescind,  332. 

according  to  modern  civil  law,  335. 
SALES  OF  LANDS,  damages  against  vendor,  197,  227. 

against  vendee,  203. 

in  case  of  fraud,  655. 
SAYER,  on  damages,  cited,  1,  126. 
SCOTCH  LAW,  differences  between  English,  and,  as  to  nominal  damages,  55, 

note. 
SCOTCH  RULES,  63. 

divide  damage  into  certain  and  uncertain,  63. 

in  case  of  sales,  307. 
SEDUCTION,  damages  in  action  for,  89,  519,  631. 

must  be  loss  of  service  to  maintain,  633,  and  notes. 
SEED,  damages  for  breach  of  warranty  of,  329,  note,  509,  and  note  1. 
SEISIN,  covenant  of,  186. 
SEQUESTRATION,  damages  in,  584. 

how  ascertained,  695,  note  1. 
SERVANT,  damages  for  enticing,  635. 

damages  for  trespass  to,  651. 

actions  by,  for  wages,  389,  note  2. 
SEE  VI  REDEMPTIONE,  what,  16. 
SERVICE,  contracts  for,  251. 

deprivation  of,  96. 

payment  in,  202,  206. 

loss  of,  in  actions  for  seduction,  631,  et  seq.,  633,  and  notes. 
for  injury  to  child,  636,  and  note  2. 
SET-OFF,  487. 

at  common  law,  none,  487. 

not  allowed  in  trespass,  621. 

introduced  from  equity,  487. 

statutes  of,  488. 
SHEEP,  infection  by,  98. 
SHERIFFS,  and  other  officers,  actions  against,  585,  et  seq. 

wrongful  seizures  by,  587,  note  2. 

attachments  by,  588,  note. 


INDEX.  753 

SHERIFFS,  —  Continued. 

bail  of  their  deputies  not  liable  till  sheriffs  are  damnified,  342,  note. 
damages  against,  the  actual  injury  sustained,  58G,  el  seq.,  G04, 
actions  against,  for  escape,  589. 

discrepancy  between  English  and  American  rule  as  to,  590. 
burden  of  proof,  in  actions  against,  590,  595,  ?iote, 
rule  in  Connecticut,  as  to  liability  of,  602. 
rule  of  damages  against,  in  New  York,  591,  596. 
in  Arkansas,  600. 
in  North  Carolina,  600. 
in  Illinois,  599. 
in  Vermont,  587,  593,  599. 
in  Georgia,  600. 
in  Massachusetts,  &c.,  593,  600. 
in  various  other  States,  587,  note,  592,  note  2, 

595,  note  1,  605,  and  note  2,  610,  7iote  1. 
for  illegal  acts,  603,  609. 
consequential  damages  against,  608,  and  7tote  1. 
suits  on  official  bonds  of,  600,  609. 

bonds  to,  341,  note  I. 
actions  against,  for  taking  insufficient  sureties,  602. 
for  false  returns,  607,  and  note  2. 
for  neglect,  587,  note. 
for  escape,  589,  et  seq.,  594. 
interest  allowed  on  property  wrongfully  taken  by,  588,  note. 
liability  of,  on  sales  of  lands  on  execution,  588,  note. 
nominal  damages  against,  592,  594,  note  1. 
mitigation  in  actions  against,  594,  et  seq.,  604,  605. 
sunmiary  of  rules  in  actions  against,  595,  note  2. 
exemplary  damages  against,  602. 
SILVER  COIN,  261,  note  2. 

dollars  or  units,  261,  note  2. 
SLANDER,  626,  et  seq. 

nominal  damages  in,  49. 

and  libel,  626,  et  seq.  » 

mitigation  in,  627,  et  seq.,  and  notes. 
actionable  words  in,  527,  626. 
special  damage  in,  622,  and  notes. 
of  title,  630. 
of  vessel,  99. 

no  damage  in  action  of,  for  words  spoken  after  suit  brought,  111. 
of  female,  626,  and  note  4. 
repetition  of,  629. 
justification  of,  629,  and  ^lotes. 
SLAVES,  covenant  to  teach  a  trade,  220,  note  2. 
48 


754  INDEX. 

SLAVES  —  Continued. 

hire  of,  424. 

negligent  killing  of,  96,  note. 

damages  for,  in  trover,  570. 
SPECIAL  CONTRACTS,  244. 
SPECIAL  DAMAGE,  averment  of,  676. 

under  new  codes  of  practice,  678,  note. 
necessary  to  right  of  action  for  doing  pro- 
hibited act  affecting  the  public,  661. 
SPECIAL  DAMAGES,  677,  note  1. 

pleading  of,  677,  et  seq. 

against  carriers,  77,  et  seq.,  79,  note  1,  395,  note  2. 

in  trover,  544. 

in  replevin,  582,  583,  note  1,  588,  7iote  1. 

in  trespass,  618,  659. 

in  various  cases,  677,  note  1. 

in  slander  and  libel,  626,  et  seq.,  627,  note  I. 

for  breach  of  warranty,  325. 

injury  to  feelings  not  laid  as,  632,  note  2. 
SPECIAL  PROPERTY  in  trover,  556,  note  2,  557. 

in  replevin,  580. 

in  trespass,  614. 
SPECIE,  261,  note  2. 
SPECIFIC  MONEY  ACTS  of  California  and  Nevada,  263,  7iote,  and  Final 

Note. 
SPECIFIC  PERFORMANCE,  when  suit  at  law  becomes  suit  for,  9  and  note  1. 

is  not  derived  from  the  Roman  law,  713,  note. 

articles,  when  agreed  on  as  payment,  267. 

agreements  not  capable  of,  not  within  Sir  Hugh  Cairn's  Act,  9. 
SPECIFIC  personal  property,  suits  for  recovery  of,  576. 
SQUIB,  case  of  the,  86. 

STATUTE  OF  FRAUDS,  measure  of  damages,  what  contract  is  within,  207. 
STATUTE  in  New  York,  as  to  recovery  in  dower,  139. 

as  to  collisions,  537,  note. 
STATUTES,  damages  under,  661,  e<  seq. 

as  to  damage  from  mills,  92,  148. 

giving  damages,  670. 

of  different  States  as  to  improvements,  662,  et  seq. 

regulating  U.  S.  coin,  261,  note  2. 

for  attendance  of  witnesses,  669,  note. 

of  Henry  VIIL  and  Anne,  429. 

English,  as  to  improvements,  663,  et  seq. 

of  Merton,  Marlbridge,  and  Gloucester,  127,  139. 
STERLING  EXCHANGE,  damages  on,  265,  note  1. 
STEVENS,  referred  to,  4. 


INDEX.  755 

STIPULATED  DAMAGES  (See  Liquidated  damages). 
STIP  ULA  TIO  D  UPLEX,  1 63. 

STIPULATORS,  liability  of.  in  collision  cases,  537,  note. 
ST.  LOUIS,  trial  by  Battle  greatly  restricted  by,  17. 
STOCK,  damages  on  sale  of,  292,  et  seq.,  318. 

agreements  to  transfer,  292,  et  seq. 

calls  upon,  419. 

and  other  vendible  commodities,  no  just  distinction  between,  as  to  dam- 
ages, 304,  553,  note. 

refusal  to  allow  transfer  of,  419. 
STOCKHOLDERS,  actions  against,  419. 
STOWAGE,  damages  resulting  from  bad,  when  recouped,  512. 
STREETS,  damages  for  opening,  662,  note  2,  et  seq.,  668,  note  1. 
SUB-AGENTS,  391. 
SUBJECT,  arrangement  of,  36. 
SUB-LESSEE  (See  Lessee),  370. 
SUPER  VISUM  VULNERIS,  damages,  704,  note  1. 
SURETIES  for  public  officers  and  others,  suits  against,  340,  610. 

actions  by,  341. 
SURETY  and  principal,  damages  in  actions  between  (See  Principal),  340. 
remoteness  of  damages  as  to,  80,  371. 

not  responsible  for  consequential  damages,  80,  371,  377. 

judgment  against,  when  evidence  against  principal,  347. 

must  in  general  have  sustained  loss,  to  maintain  suit,  341. 

consequential  damage  to,  362. 

notice  by,  to  principal,  of  suit,  364,  et  seq. 

TAXES  AND  ASSESSMENTS,  covenant  to  pay,  215. 

TELEGRAPH    COMPANIES,  whether  common  carriers,  408,  note  3,  et  seq. 

contracts  with,  when  complete,  414. 

consequential  damages  against,  411. 
TELEGRAPHS,  408,  note  3,  et  seq. 

rule  in  Hadley  v.  Baxendale  applied  to,  414. 
TENDER,  what  is  good  as,  684,  note  1. 

legal,  whether  act  of  Congress  making  notes  such  is  constitutional,  261, 
note  2. 
acts  considered,  261,  note  2. 

when  it  can  be  pleaded,  684. 
TEXAS,  no  forms  of  action  in,  40,  note. 
"  THEREUPON,"  effect  of,  as  in  pleading,  676. 
THREATS  of  injury,  83. 
TIME  of  detention,  when  recovered  for,  616. 

for  delivery  of  goods,  292. 

of  computing  value  in  trover  and  trespass,  549,  note  1,  620. 
TITLE  deeds,  trover  for,  565,  note  1. 


756  INDEX. 

TITLE,  —  Continued. 

bonds,  damages  on,  201. 

to  real  property,  covenants  for,  1 60,  et  seq. 

damages  on,  175,  notes,  176,  note  1. 

to  personal  property,  warranty  of,  177,  and  notes,  178,  and  notes,  et  seq., 
328,  et  seq. 

expense  of  investigating,  in  real  property,  196. 

negligence  in  investigating,  588,  note. 
TORT,  intent  material  in,  517. 

rule  in  Hadley  v.  Baxendale  does  not  apply  to  actions  of,  85. 

no  uniform  rule  in  many  cases  of,  533. 

objections  to  considering  motive  in,  124. 
TORTS  generally,  damages  in,  85,  et  seq.,  515. 

how  treated  in  this  work,  41. 

joint,  688. 

several,  689. 
TOTAL  LOSS  (See  Insurance),  279. 
TOULLIER,  cited,  61,  259. 
TOWNS,  actions  against,  92,  668. 
TRADE-MARKS,  damages  for  imitation  of,  46,  675,  note. 

counsel  fees  in  suits  for  protecting,  673,  note  1. 
TRANSACTION,  matters  relating  to  same,  included  in  one  suit  under  new 

codes,  226,  note  1. 
TRANSFER  of  stock  (see  Stock),  damages  for  refusal  to  allow,  419. 

of  real  estate,  agreements  for,  and  damages  on  breach  of,  195. 
TREASURY  NOTES,  United  States,  as  legal  tender,  261,  note  2. 
TREBLE  DAMAGES  by  statute,  671. 

in  patent  cases,  674,  note  1. 
TREES,  destruction  of,  146,  and  note  1,  559,  and  note  2,  625,  note  1. 
TRESPASS,  612. 

to  try  titles,  129. 

for  mesne  profits,  damages  in,  132. 

to  lands,  rule  of  damages  in,  142,  et  seq. 

to  real  estate,  where  personal  property  is  removed,  622,  et  seq.,  625. 

to  persons  and  personal  property,  612,  et  seq. 

against  sheriffs  and  other  officers,  585,  et  seq. 

to  personal  property,  613. 

mitigation  in,  640. 

to  person,  613,  631,  et  seq. 

mitigation  in,  636,  et  seq.,  and  notes. 

to  real  property,  142,  et  seq. 

to  lands,  nominal  damages  in,  142. 
remote  damages  for,  144. 

quare  elausum  fregit,  145,  et  seq. 

and  case,  distinction  between,  66. 

vi  et  armis,  529,  note,  652. 


INDEX.  757 

TRESPASS,  de  bonis  asportatis,  146,  156,  615,  621. 

for  cutting  trees,  150,  note  2,  625,  note  1. 

rule  in,  how  far  equivalent  to  that  in  trover,  573,  note  2. 

to  land,  and  removing  soil  or  mineral,  622. 

for  unlawfully  removing  property  from  attachments,  636,  note  3. 

compensation  the  general  rule  in,  648. 

joint,  extent  of  recovery  for,  681,  andwo^«  2. 
TRIAL  by  battle,  16. 

by  jury,  18. 

by  ordeal,  16. 

wager  of  law,  17. 
TROPLONG,  cited,  703,  note. 
TROVER,  rules  of  damages  in  the  action  of,  541,  571.  • 

may  be  sometimes  brought  when  assumpsit,  trespass,  or  replevin  will 
lie,  541. 

form  of  action  as  affecting  damages  in,  571. 

special  damage,  can  it  be  recovered  in  ?  544. 

recoupment  in,  by  pledgee,  556. 

value  of  property  the  general  rule  in,  542. 

rule  where  property  fluctuates  in  value,  545,  549,  note  1. 

value  estimated  at  the  time  of  trial  or  conversion,  or  when  ?  545,  et  seq. 
549,  7iote  1,  et  seq. 

rule  in,  where  plaintiff  claims  under  lien,  557. 
as  to  confusion  of  property,  559. 
as  to  securities,  563,  565. 

for  choses  in  action,  563,  565. 

for  stocks,  548,  549,  note  1. 

interest  in,  567. 

mitigation  of  damages  in,  556,  note  2,  568. 

for  title  deeds,  565,  note  1. 

presumption  of  value  against  wrong-doers  in,  548. 

qualifications  of  general  rule  in,  544. 

English  rule  in,  546. 

New  York  rule  in,  548. 

Massachusetts  rule  in,  549. 

rules  as  to,  in  various  States,  552,  note. 

what  the  rule  in,  should  be  on  principle,  550,  555,  note. 

actual  value  the  rule  in,  where  no  market,  311,  note,  542,  note  2. 

value  in,  not  always  limited  to  place  of  conversion,  542, 7iote  2. 

value  of  foreign  goods,  how  ascertained  in,  542,  note  2. 

fluctuation  of  rule  in,  considered,  549,  7iote  1. 

objections  to,  553,  note,  et  seq. 

rule  in,  where  plaintiff  has  special  property,  556. 
where  lienor  sues  stranger,  557. 

damages  in,  for  tortious  taking,  561,  572. 


758  INDEX. 

TROVER,  —  Continued. 

in  case  of  partners,  563. 

of  part  owners,  570. 

property  in  third  person  generally  no  defense  in,  569. 

distinction  between,  and  replevin,  577,  note  1. 

effect  of  judgment  in,  574. 
TRUST,  breach  of,  9,  note  1,  266,  note. 
TRUSTEE,  9,  note  1,  266,  note,  619. 
TRUTH,  in  pleading,  38,  note. 

in  justification  in  slander  and  libel,  628,  and  note  1. 
TUNBRIDGE  WELLS  DIPPERS'  CASE,  45. 

UNAUTHORIZED  sales,  331,  note  2. 

contracts,  392,  note  1. 

suits,  643. 
UNCONSCIONABLE  AGREEMENTS,  233. 
UNDERTAKINGS,  statutory  actions  on,  453,  note  1. 
UNITED  STATES  treasury  notes,  261,  note  2,  et  seq. 

officials,  claims  against,  675. 
UNITS  of  value  in  United  States,  266,  note. 
UNLIQUIDATED  demands  do  not  carry  interest,  432. 

damages  not  set  off,  generally,  488. 

cross  demands  allowed  to  be  set  off  in  some  States,  488,  note  1. 
USURY,  439,  note  1,  457,  et  seq. 

VALUATION,  time  of,  in  replevin,  579,  580. 

VALUE   (market)   of  goods,  how  determined  (See  Market  Value),  291, 
note  1,  309. 

of  land,  how  determined,  201. 

units  of,  in  United  States,  gold  and  silver  dollars,  266,  note. 

generally,  furnishes  rule  in  trover  (See  Trover),  542. 

fluctuating  rule  as  to,  in  trover,  considered,  549,  note  i. 

obtaining  of,  in  trover,  transfers  title,  575,  note  1. 

of  chattels,  how  determined  where  no  market,  ^\0,note  1. 
how  computed  in  actions  against  carriers,  401. 
not  fixed  by  price,  319. 

with  regard  to  evidence  generally,  698. 

proved  by  opinion  of  witnesses,  696. 

of  foreign  coin  in  this  country,  266,  note. 

fluctuations  in,  during  contract,  249. 

actual,  the  rule  in  trover,  where  no  market,  310,  note  1,  542,  note  2. 
VENDEE  of  goods,  must  rescind  wholly,  if  at  all,  311. 

failure  of,  to  complete  purchase,  312. 

notice  of  non-performance  by,  ineffectual,  3 1  6. 

of  land,  measure  of  damages  against,  203. 


INDEX.  759 

VENDOR  of  land,  measure  of  damages  against,  196,  227. 

where  title  wholly  fails,  197. 

of  chattels,  damages  against,  290. 
VENDOR'S  right  x)f  resale,  where  price  not  paid,  313. 
VERDICT  on  good  and  bad  counts,  G87.     ' 

amount  of,  how  computed  by  jury,  711. 

when  set  aside,  706,  et  seq. 
VEXATIOUS  SUIT,  no  recovery  for,  in  cases  of  contract,  beyond  costs,  104. 
VINDICTIVE   DAMAGES    (See    Exemplary   Damages),   34,    105,  517, 

527,  note. 
VIVA  PEGUNIA,  what,  14. 

WAGER  OF  LAW,  17. 

WAGES,  actions  for,  389,  note  2. 

WAIVER  of  performance,  241,  note,  244,  note  1. 

WARRANTIA    CHARTS,  161. 

WARRANTY,  covenant  of,  84, 161. 

implied  on  sales  of  notes,  267. 

on  sales  of  personal  property,  328,  et  seq.,  332. 

of  goods  deliverable  at  a  distant  market,  318. 

right  to  return  if  contract  not  complied  as  to,  319. 

of  title,  328. 

the  actual  value  is  the  standard  of  damages  for  breach  of,  319. 

difference  between  actual  and  warranted  value,  the  rule,  324. 

of  title  to  personal  property,  328,  et  seq. 

of  quantity,  325. 

of  indorsement,  267,  332. 

of  animals,  ^2%,  note. 

expenses  of  keep,  in  action  for  breach  of,  322. 

consequential  damages  on,  325. 

expenses  of  litigation  on  breach  of,  326. 

rule  in  Hadley  v.  Baxendale  applied  to,  329,  note. 

in  case  of  seed,  329,  note,  509,  note  1. 

on  sales  in  Louisiana,  334,  note  2. 
WASTE,  damages  in  actions  of,  126,  157. 

at  common  law,  157. 
WATERCOURSE,  damages  for  diversion  of,  47,  147,  et  seq. 
WEALTH  OF  -DEFENDANT,  evidence  of,  not  admitted  in  case  of  trespass 
to  real  property,  146. 

nor  in  action  for  criminal  conversation,  634. 

but  admitted  in  actions  for  breach  of  promise,  634. 

for  malicious  torts,  generally,  634,  note  2. 

evidence  of  confined  to  general  reputation,  634. 
WERE,  the  Anglo-Saxon,  11,  12. 
WEREGILD,  11. 


760  INDEX. 

"  WHEREBY,"  effect  of,  in  pleading,  676. 
WILL,  conspiracy  to  effect  revocation  of,  9L 
WITE,  the  Anglo-Saxon,  12. 
WITNESSES,  actions  against,  669,  et  seq. 

statutes  for  attendance  of,  669. 

to  testify  to  facts  only,  693. 

exceptions  to  general  rule  as  to  their  testimony,  693,  et  seq. 
WORK  and  labor,  contracts  for,  234,  and  notes,  et  seq. 

extra,  243. 

stopped  by  other  party  to  contract,  244. 
WRIT,  damages  accruing  after  date  of,  111. 
WRITS,  classification  of  by  Lord  Coke,  43. 
WRONG-DOER  cannot  apportion  wrong,  97. 
WRONG-DOERS,  personal,  presumption  against,  543. 
WRONGFUL  ATTACHMENT,  453,  587,  note  2,  621,  note  1,  642. 
WRONGS,  not  apportionable,  97. 

personal,  626,  et  seq. 

mitigation  as  to,  636. 


WHOLE  NUMBER  OF  PAGES,  828. 


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